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Filing # 67159730 E-Filed 01/29/2018 10:02:24 AM

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT,


IN AND FOR ESCAMBIA COUNTY, FLORIDA

STATE OF FLORIDA
CASE NO. 1993-CF-870-A
v.

ERIC SCOTT BRANCH,


Defendant.
______________________________/

APPLICATION FOR STAY OF EXECUTION AND MOTION TO VACATE


JUDGMENT AND SENTENCE WITH SPECIAL REQUEST FOR LEAVE TO AMEND
Defendant, ERIC SCOTT BRANCH, through counsel, moves to vacate his death

sentence pursuant to Fla. R. Crim. P. 3.851.

APPLICATION FOR STAY OF EXECUTION

The claims raised herein are unencumbered by legitimate procedural impediments: one is

founded on a new scientific consensus that was not available during prior proceedings; the other

is a claim that becomes ripe for review only after a death warrant is issued. Both claims implicate

the Eighth Amendment’s constitutional prohibitions against cruel and unusual punishment.

This case deserves meaningful consideration, and a meaningful evidentiary hearing,

without the truncating concerns of a death warrant. This Court is authorized to enter a stay of

execution. As this submission demonstrates, the equities of this case make it appropriate for this

Court’s exercise of its authority to enter a stay.

PROCEDURAL AND FACTUAL HISTORY 1

Eric Scott Branch was indicted on one count of first degree murder, one count of sexual

battery and one count of grand theft auto on February 23, 1993. Trial began on March 7, 1994. Mr.

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The judgments and sentences under attack are as follows: Judgment of guilty for Count I (first
degree murder), sentence of death; judgment of guilt for Count II (sexual battery), life sentence;
judgment of guilty for Count III (grand theft auto), sentence of five years imprisonment.
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Branch was convicted as charged on March 10, 1994. The jury recommended death by a vote of

10-2 and the trial court followed its recommendation, sentencing Mr. Branch to death on May 3,

1994. The Florida Supreme Court affirmed Mr. Branch’s convictions and death sentence on direct

appeal. Branch v. State, 685 So. 2d 1250 (Fla. 1996). 2 The United States Supreme Court denied

certiorari review on May 12, 1997. Branch v. Florida, 520 U.S. 1218 (1997).

On May 7, 1998, Mr. Branch filed a Rule 3.850 motion. It was amended on April 1, 2003

and again on October 10, 2003. 3 After an evidentiary hearing, the circuit court denied relief. On

appeal, the Florida Supreme Court affirmed. 4 On August 31, 2005, Mr. Branch filed a petition for

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The following issues were raised on direct appeal: (1) failure to grant a continuance; (2) failure
to conduct a Nelson hearing; (3) failure to give a requested circumstantial evidence instruction; (4)
error in admitting a photograph of the victim; (5) insufficient evidence; (6) improper comment on
Mr. Branch’s right to remain silent; (7) failure to give a requested jury instruction defining
mitigating circumstances; (8) error in admitting evidence of other crimes; and (9) improper victim
impact evidence. The Florida Supreme Court denied all of Mr. Branch’s claims.
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Mr. Branch raised the following issues: (1) Ineffective assistance of counsel at the guilt phase;
(2) ineffective assistance of counsel at the penalty phase; (3) newly discovered evidence that the
judge and jury considered a non-statutory aggravator; (4) Mr. Branch’s rights under Ake v.
Oklahoma were violated; (5) Mr. Branch was denied his constitutional rights when his lawyer was
prevented from interviewing jurors; (6) Mr. Branch’s sentencing jury’s sense of responsibility was
improperly diminished; (7) Florida’s capital sentencing scheme is unconstitutional under Ring v.
Arizona; (8) lethal injection is cruel and unusual punishment; (9) Mr. Branch may be incompetent
at the time of execution; (9) the trial court improperly relied on an automatic aggravator; (10) Mr.
Branch was denied due process due to omissions in his trial transcripts; (11) agencies improperly
withheld public records; (12) Florida’s capital sentencing scheme is unconstitutional on its face;
and (13) cumulative error.
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In his Rule 3.851 appeal, Mr. Branch raised nine issues: (1) The trial court erred in finding that
defense counsel was not ineffective for failing to file a motion to suppress; (2) the trial court erred
in finding defense counsel was not ineffective for failing to investigate and present mitigation; (3)
the trial court erred in finding defense counsel was not ineffective for failing to hire experts; (4)
the trial court erred in finding the Indiana conviction amounted to a prior violent felony; (5) the
trial court erred in finding defense counsel was not ineffective for failing to object to the Indiana
abstract judgment; (6) the trial court erred in finding defense counsel was not ineffective for failing
to impeach; (7) the trial court erred in finding Mr. Branch’s failure to investigate claim without
merit; (8) the trial court erred in finding defense counsel’s failure to object reasonable; and (9) the
trial court erred in not addressing cumulative errors.
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writ of habeas corpus in the Florida Supreme Court. The Florida Supreme Court denied Mr.

Branch’s petition on August 31, 2006. 5 Rehearing was denied on March 12, 2007.

On March 28, 2007, Mr. Branch filed a federal habeas petition in the Northern District of

Florida. Mr. Branch’s petition was denied on March 30, 2010, with a Certificate of Appealability

granted. The Eleventh Circuit denied Mr. Branch’s appeal on April 21, 2011. Branch v. Sec’y, 638

F.3d 1353 (2011).

I. Eric Branch’s Life History

From running barefoot through a blizzard covered in blood to get away from his abusive

father at the age of five, to his anguish-filled decision to give his daughter up for adoption, thereby

losing his first chance to have the family he so desperately wanted, to becoming the victim of a

gang-rape in prison as a teenager, Eric’s traumatic upbringing was riddled with physical and

emotional abuse, neglect and abandonment. Eric’s short life before ending up on death row can

only be described as a series of one tragic day followed by another.

The science of human brain development today “informs that the human brain is not

appropriately ‘formed’ or mature until an individual reaches their mid-twenties.” Report of Faye

E. Sultan, Ph.D., at 16. “[S]cience now recognizes that the cut-off of 18 years is arbitrary, and not

in accord with the current understanding of the scientific community. . . . [T]he current scientific

understanding of adolescent brain development was not available during earlier proceedings in

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In his federal habeas petition, Mr. Branch raised four issues: (1) Ineffective assistance of appellate
counsel for failing to sufficiently argue the State failed to prove the prior violent felony aggravator;
(2) ineffective assistance of appellate counsel for failing to raise the issue of the trial court’s error
in admitting DNA evidence; (3) ineffective assistance of appellate counsel for failing to raise the
issue of the trial court’s error in denying Mr. Branch access to his attorney; and (4) ineffective
assistance of appellate counsel for failing to argue that Florida’s Nelson inquiry is unconstitutional.
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Eric Branch’s case.” Report of James Garbarino, Ph.D., at 1. Eric Branch was a 21-year-old

traumatized, alcohol-addled boy at the time of the offense.

A. Eric Branch was born to teenage parents in an unstable environment and a


family with a history of substance abuse

Eric Branch was born on February 7, 1971, in Rockport, Indiana, to Sharon and Neal

Branch. When Eric was born, they already had one child, Robert Neal Branch. Sharon was fifteen

and Neal was sixteen at the time, and Neal’s family, the Branches, felt marriage was the

appropriate thing to do. Pryor Dec. at ¶ 5. Sharon had an eighth grade education and grew up in

extreme poverty in Appalachian Kentucky. Because she was so young when she married, she had

no idea how to be a wife and mother. Barbara Jo Pryor Dec. at ¶ 2. She did not know how to cook,

clean, or take care of herself, let alone two children. Id. Sharon drank a lot, and she was likely

drinking while pregnant with Eric. Pryor Dec. at ¶ 4. Sharon was an alcoholic who “was drunk

more often than she was sober.” Nosko-Passmore Dec. at ¶ 4. The environment in the home was

deplorable and chaotic. Pryor Dec. at ¶ 13. “The kids were neglected terribly.” Pryor Dec. at ¶ 10.

Sharon would leave Eric lying in his crib unattended for hours. C. Branch Dec. at ¶ 3. She left him

for so long that his head flattened. Sharon left the house dirty. The kids were dirty and just ran

around in diapers. Pryor Dec. at ¶ 10. On another occasion, when Eric was about 18 months old,

his aunt came over to find Robert running around in a diaper and Eric left in a filled sink. Pryor

Dec. at ¶ 10. Sharon was passed out in her room. Pryor Dec. at ¶ 10.

Neal was incredibly violent with his wife and children. He had a reputation in the

community for being a “raging, violent, alcoholic.” D. Branch Dec. at ¶ 3; see also Bickel Dec. at

¶ 2; Pryor Dec. at ¶ 7. Neal could not function without being drunk. R. Branch Dec. at ¶ 12. He

also used drugs. D. Branch Dec. at ¶ 3. One of Eric’s childhood friends described Neal as “the

most despicable person [he had] ever met.” Bickel Dec. at ¶ 2. Neal beat Sharon during both of

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her pregnancies. Dee Eval. at 10. He fought with Sharon often, not caring if they were in front of

the children. Robert and Eric were only toddlers, and the fights scared them. The boys would

huddle in the corner, terrified. Dee Eval. at 10. When Eric was three, Neal threw Sharon to the

ground and stomped on her right in front of him. Dee Eval. at 10. He beat Sharon so badly that she

needed to be taken to the hospital on multiple occasions. One time, he punctured her kidney, and

she had to have it removed. Pryor Dec. at ¶ 7. Neal Branch would sometimes beat his wife and

kids out in the open. Bickel Dec. at ¶ 3.

After a few years, Neal and Sharon divorced. Eric was still a toddler. Dee Eval. at 4. After

the divorce, Sharon took the kids to Neal’s parents, Alfred and Marcille Branch, and she moved

back home with her own parents. Alfred and Marcille took care of the kids while Sharon tried to

get back on her feet. Neal moved away to Arizona. While there, he went to prison for beating his

new wife. R. Branch Dec. at ¶ 5. One of Eric’s first memories of his father is seeing Neal in

handcuffs at the courthouse in Phoenix. Dee Eval. at 5. Neal was in prison before returning to

Indiana. During that time, “Eric’s mother was completely absent from his life. His father was in

prison out of state. He had no love or support from either of his parents.” Melton Dec. at ¶ 3. One

of Eric’s childhood friends described this period in Eric’s life:

Eric never stood a chance in life. Eric’s father was a real piece of shit. He was a
physically abusive alcoholic. Eric’s mother for all intents and purposes abandoned
him. Eric’s grandparents were very nice but completely ill-equipped to take care of
him. Their lack of discipline, rules, and consequences proved to be disastrous for
him. Eric received no structure, routine, direction, or guidance from anyone.

Greene Dec. at ¶ 2.

When Neal returned to Indiana, he moved onto his parents’ property. By the time Eric was

in kindergarten, the boys were living with their father. R. Branch Dec. at ¶ 13. Neal was incredibly

violent with his children. Neal beat them even when they were toddlers. R. Branch Dec. at ¶ 7. He

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would punch Eric and slam him into the concrete when Eric was just a young child. Id. Eric would

have black eyes, bruises, and busted lips. Bickel Dec. at ¶ 4. Robert explains, “We were whipped

in a manner far beyond what any child would ever deserve.” R. Branch Dec. at ¶ 7. “[I]t happened

all the time.” Id.

Neal was particularly violent with Eric. “He would grab, beat, and hit Eric with whatever

he could get his hands on. He would grab him by the hair, punch him in the face, and slam him to

the ground. He beat Eric like he was a full grown man, even when Eric was a small child.” R.

Branch Dec. at ¶ 8. Eric would sometimes try to run away from the beatings, and Neal would just

chase him out into the yard and continue the beatings there. Id.

When Eric was only five, he went running to a neighborhood friend for escape. As Jay

Bickel describes:

During the blizzard of 1976, when Eric was about five, he ran to my house barefoot
in the snow covered in blood. Neal had beaten him in the face and head severely.
Eric’s face was totally swollen. He looked like he had been in a boxing match with
a prizefighter. He was beat so severely that some of his teeth were loose.

Bickel Dec. at ¶ 7.

In addition to the violence, Neal was negligent toward his children. At six, Robert was in

charge of caring for himself and Eric. He had to get both of them up, dressed, and ready for school.

R. Branch Dec. at ¶ 7. There was no structure or parental figure. Eventually, the kids went back to

stay with their grandparents.

A large part of Neal’s ability to get away with this violence and neglect was his family’s

prominence in the community. Unlike Sharon’s family, Neal’s family had some money. Neal was

“a spoiled brat whose family owned a restaurant, motel, and gas station in town.” Declaration of

Dixie Davis at ¶ 2. Neal’s parents, Marcille and Alfred, had a history of bailing Neal out of

situations when he got into trouble. They did so even when he was violent toward them. They

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didn’t report him when he punched Alfred and stole $5,000 from him. R. Branch Dec. at ¶ 3. Neal

did not have to learn accountability. Neal would get arrested for the abuse, but nothing ever came

of it. Bickel Dec. at 6. Alfred would pull strings to make the charges go away. Id. As a result, Neal

was self-centered and never took responsibility for his actions. R. Branch Dec. at ¶ 2. Shortly

before Alfred’s death a few years ago, Alfred admitted to Eric’s brother, Robert that his biggest

regret was not making Neal accountable for his actions. R. Branch Dec. at ¶ 3. Alfred would later

go on to cover for Eric in much the same way.

B. After Eric Branch’s mother remarried, he had difficulty adjusting to the


change

Sharon married Doug McMurtry when Eric was still in elementary school. McMurtry Dec.

at ¶ 1. Eric and his brother moved out of their grandparents’ house and back in with their mom and

new stepfather in Lynnville, Indiana. R. Branch Dec. at ¶ 14. The change in environment was

drastic. While Alfred and Marcille were financially stable, Doug and Sharon had almost no money

and could not meet Eric and Robert’s basic needs. They could not even keep the heat on, and the

family started using food stamps. R. Branch Dec. at ¶ 18. The four of them lived in a singlewide

trailer, and Eric and his brother shared a room. D. Branch Dec. at ¶ 5. Eric had become accustomed

to being able to keep up with the latest trends at school, but he was no longer able to do so once

he moved back home with his mother. R. Branch Dec. at ¶ 17. From as far back as Robert could

remember, his little brother was obsessed with being cool. R. Branch Dec. at ¶ 21. It was much

more difficult to do so in Lynnville without any money. Eric was desperate to fit in and be popular,

so he started showing off to try and get attention. Eric had such a hard time with the transition that

he failed and had to repeat the third grade. R. Branch Dec. at ¶ 19-20; Dee Eval. at 5.

Making matters worse, Eric had a very tense relationship with his stepfather. Life with his

grandparents meant almost no discipline. Eric was used to Neal not caring and letting the kids run

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wild, so Eric “didn’t know how to live with rules and couldn’t listen.” Davis Dec. at ¶ 5. Doug had

a military background and was extremely strict. R. Branch Dec. at ¶ 14. Doug expected the children

to earn everything, including their dinner. Eric once reported, “You got the feeling you had to earn

your meals even in the 3rd grade.” Dee Eval. at 6. Doug took a hard labor approach to discipline,

and when the boys misbehaved, Doug would make them do strenuous physical activity for hours

on end. Robert had to chop wood for 12 hours straight one night, R. Branch Dec. at ¶ 15, and Eric

was left outside all night pulling weeds. Dee Eval. at 11. Robert quickly fell in line to avoid this

discipline as much as possible. Eric was unable to control his emotions and actions, so he continued

to get in trouble, further worsening his relationship with Doug. Robert tried telling Eric to just do

as Doug said, but Eric could not figure out how to stay away from Doug’s wrath.

Eric’s tense relationship with Doug affected his relationship with his mother and brother.

Eric felt that Sharon chose Doug over him. Nosko-Passmore Dec. at ¶ 4. Robert got into trouble

less often, so Eric felt that his mother loved Robert more than him. He felt like she favored Robert

over him and started to resent his brother for their mother’s attention. R. Branch Dec. at ¶ 22.

Others could tell by the family’s interactions with each other that there was validity to the way

Eric felt. Greene Dec. at ¶ 6; McMurtry Dec. at ¶ 5; Nosko-Passmore Dec. at ¶ 4. “Robert was the

chosen one. Eric was the black sheep.” Id. Because of this, Eric developed a low self-esteem. R.

Branch Dec. at ¶ 22.

Eric had difficulty controlling his emotions. He would go into fits of rage where he would

destroy furniture. He threw tantrums, even when he was far too old to be doing so. R. Branch Dec.

at ¶ 23. He did this all the time. Id. He would “kick, scream, punch walls, and break things. Id. His

emotions overwhelmed him, like they do with little kids.” Id. He could not stand being told no and

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would go into rages. McMurtry Dec. at ¶ 3. He could not control his impulses and “acted like a

child much younger than his age.” Id.

Sharon started having difficulties with her emotions too. Around the time that Eric was in

5th grade, his mother had a tubal pregnancy that terminated after a miscarriage. Dee Eval. at 6.

Sharon was depressed about losing her baby and started having sudden mood swings. She would

seem happy and then suddenly be distant and withdrawn. She would go through weeks of

depression at a time.

In seventh grade, Eric started drinking to cope with his feelings. He would skip school and

go to the woods to drink beer and whiskey. The family would throw huge parties on the weekends.

R. Branch Dec. at ¶ 26; McMurtry Dec. at ¶ 6. There would be a lot of people over, and both

Sharon and Doug would get drunk. Id. Robert and Eric would steal some of the alcohol and slip

off into the woods to drink it. Id. The boys started drinking as much as they could, whenever they

got the chance. Id. As the two boys got older, it got easier for them to find alcohol. Id. at 27. They

would have “epic drunk fests,” where they would drink until they passed out. Id. at 27.

Eric and Robert’s instantaneous penchant for alcohol was no surprise given the family

history. Sharon’s grandfather was an alcoholic, and her father was a binge drinker. Phillips Dec.

at ¶ 6. Sharon and her sister Dixie struggled with drugs and alcohol. Id. Her brothers, Jimmy and

Dale, were also alcoholics. Id.

Desperate for some kind of attention, Eric started getting increasingly reckless. He would

ride his bicycle along a two-story railing with nothing but a mattress on the ground to break his

fall. R. Branch Dec. at ¶ 31. He climbed a thirty-foot-high building and jumped off it into piles of

sand. Id. He had a bad motorcycle accident when he was only thirteen or fourteen. Id. at 32. Robert

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describes that his brother was “fueled by adrenaline.” Id. at 32. Between Neal’s beatings and Eric’s

many accidents, his brother thinks Eric had “countless concussions.” Id. at 34.

Then, Eric’s life changed suddenly when he was in middle school and the family took a

vacation to Gatlinburg, Tennessee. Eric saw a cassette tape that he wanted and impulsively grabbed

it. He changed his mind before leaving the store and put the tape back, but the store security guards

had already seen him. They stopped him on the way out, and his family found out what happened.

Doug was furious. He said that a thief would not live in his house. As soon as the family got back

to Indiana, they dropped Eric off at Neal’s house. Doug pulled Eric’s clothes out of the suitcase

and threw them on the porch. Sharon, Doug, and Robert drove off without him.

To Eric, this was the ultimate act of abandonment by his mother. His brother got to go

home with their mother, while he was left with an alcoholic, abusive father. He was hurt that his

mother and brother had not even stood up for him. Dee Eval. at 7.

C. In high school, Eric Branch began to self-medicate with alcohol and acted in
reckless and impulsive, “childish” ways

When Eric moved back in with Neal, his father had no interest in taking care of him. Neal

would leave some money for Eric and then disappear for days at a time. Dee Eval. at 7. After six

months, Eric wanted to return home to his mother, but Doug refused. His grandparents lived next

door to Neal, so Eric spent most of his time staying there with them. At his grandparents’ house,

Eric did not have any structure or discipline. D. Branch Dec. at ¶ 6. Instead, his grandfather started

making excuses for Eric just as he had with his own son, Neal. Id. As a young teenager, this was

the time when he needed structure most. However, as his cousin Alex reports, “My grandparents

did not give Eric any consequences for his actions. This contributed to Eric’s immaturity and

inability to develop an understanding of the world. Eric needed direction.” Id.

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By the time Eric was a teenager, he felt completely rejected by his family. He became even

more desperate to get attention and acceptance from his peers. He had no emotional support from

his family. O’Brien Dec. at ¶ 3. Eric’s relationship with his grandparents “was like, here is a bed

and here is the fridge, now take care of yourself.” Id. They were barely even home. Id.

Eric’s lack of familial support affected his decisions. “The abandonment of his parents and

lack of structure in Eric’s life largely played into his personality. Eric had the pathological need to

be accepted and liked by all.” Greene Dec. at ¶ 9. He had to be the center of attention. O’Brien

Dec. at ¶ 5. Eric would “act goofy, tell jokes and stories, or take any type of bets or dares to

monopolize the attention.” Id. For Eric, “attention was affection.” Greene Dec. at ¶ 13. He started

hanging out with a wilder crowd. Around them, Eric felt the need to be the daredevil and try to

outdo all of them. Eric also started getting in more trouble at school. Between his father and his

grandparents, Eric had no authority figures at home. He was allowed to do whatever he wanted.

Melton Dec. at ¶ 4. He kept getting into trouble. Dee Eval. at 7. Some of Eric’s childhood friends

started distancing themselves from Eric because they did not like the reckless path he was on.

Bickel Dec. at ¶ 10.

Eric’s recklessness grew more extreme over the years. He felt the need to outdo everyone

around him. Greene Dec. at ¶ 12. He played chicken while driving cars and started breaking into

buildings. D. Branch Dec. at ¶ 9. Before Eric even had a driver’s license, he took his grandparent’s

car to a rock quarry and drove quickly before locking the car brakes. Melton Dec. at ¶ 7. The car

“skidded to a stop just feet from a one hundred foot drop.” Id. Eric would make “donuts around S

curves in the road, drive far too fast, and spin the tires.” D. Branch Dec. at ¶ 14. He drove a

motorcycle at 150, and even 185, miles per hour. R. Branch Dec. at ¶ 30; Melton Dec. at ¶ 6.

During a family trip to the Ozarks, they went on a whitewater rafting trip. Phillips Dec. at ¶ 5. The

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family was told not to dive off the cliffs because the water was too shallow. Eric climbed to the

tops of the cliffs and jumped off into the water anyway. Id. Alex, Eric’s cousin, now realizes in

retrospect that Eric “felt he was all alone. He felt and acted like he had been abandoned. Eric’s

attention-seeking behavior, his need to be accepted, and his need to be popular were all things he

did to fill a hole in his life.” D. Branch Dec. at ¶ 8.

Eric did not always make it through his exploits unscathed. When Eric was 16, he was

riding on the back of his Uncle Dean’s motorcycle when he fell off and hit his head. Eric was

unconscious for at least five minutes, but nobody took him to the hospital. Dee Eval. at 9.

Eric’s fits from his youth also extended into his teenage years. D. Branch Dec. at ¶ 15. He

acted like a five-year-old when things did not go his way. Id. He would get upset easily and

“seemed unable to accept perceived losses and move on.” O’Brien Dec. at ¶ 7. He had difficulty

controlling his emotions in other ways too. He had a hard time taking anything seriously. R. Branch

Dec. at ¶ 36. He would laugh at inappropriate times, like when he got in trouble. Id.; Greene Dec.

at ¶ 16. It was like he could not control it. This would further infuriate anyone trying to discipline

him. D. Branch Dec. at ¶ 36; McMurtry Dec. at ¶ 4.

As a teenager, Eric still suffered through extraordinary violence by Neal. Eric lived with

his father and grandparents, who lived next door to each other, while his brother Robert was in

Lynnville with their mom and stepdad. R. Branch Dec. at ¶ 10. Robert would come to Rockport to

see Eric on the weekends. Each time Robert saw Eric, he was still getting beat up by Neal. R.

Branch Dec. at ¶ 10. Neal would fluctuate quickly between not caring at all about what Eric was

doing and suddenly beating him. R. Branch Dec. at ¶ 11. Robert was around for one particularly

violent beating when Eric was 15. R. Branch Dec. at ¶ 9. Neal beat Eric and pulled out a clump of

his hair. Id. He also broke a lamp over Eric’s head. C. Branch Dec. at ¶ 12. When Neal would start

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beating Eric, Eric would try to escape and run to his grandparents’ house. Neal would follow him

outside and continue beating him. R. Branch Dec. at ¶ 9.

Eric struggled with responsibility. He and his cousin got jobs together at a local drive-in

theater but Eric could not handle minor responsibility. Alex says, “Eric often wouldn’t show up

for his shifts. I would end up having to do his job for him.” D. Branch Dec. at ¶ 16.

Eric’s grandparents failed to hold him accountable at home. Eric and his friends would

come back in time for their curfews but go back out again. Greene Dec. at ¶ 7. This led to Eric’s

inability to understand consequences, whether legal or physical. Id. at ¶ 13. Robert Greene, a high

school friend, remembers that one time Eric drove a group of them to a high school football game.

Greene Dec. at ¶ 15. Eric was pulled over by a state trooper and received a speeding ticket. Before

even getting out of eyesight of the trooper, Eric tore up the ticket and threw it out the window.

Robert Greene told Eric that he could not do things like that, but Eric did not understand. See also

Melton Dec. at ¶ 8 (describing how Eric and his friends threw corncobs at a police car and, when

caught, the other kids went running away but Eric ran right toward the officer).

Eric continued to drink heavily. He and his friends drank daily if possible. O’Brien Dec. at

¶ 8. Eric would drink cases of beer and whiskey. Id. He drank to the point of blacking out multiple

times. Id. A friend of Eric’s says his “goal was to get as fucked up as possible.” Id. at ¶ 9. Eric

would drink Purple Passion, a malt beverage. When it was halfway done, he would fill it with a

half pint of Everclear, a pure grain alcohol that is 190 proof. Id. Eric also experimented with LSD

and Rush, an inhalant. Id. at 11.

When Eric was 15, he and a friend went to a fraternity party at Indiana University. Melton

Dec. at ¶ 10. Eric got “absolutely smashed drunk.” Id. Eric vomited in the bathroom before falling

down a flight of steps while sitting in a wheeled desk chair. Id. at 10, 12. He lay motionless at the

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bottom of the steps for quite a while. When Eric got up, he suddenly became overwhelmed by his

emotions and broke down crying. He told the fraternity brothers at the party about the abuse he

was going through at home and asked them to start beating him. “Some of the fraternity brothers

were so disturbed” that they called the police. Id. at 11. People from social services were at Eric’s

house by the time he and his friend made it home. Id.

As a young teenager with no support or guidance, Eric started to get into legal trouble.

When he was 14, he and some friends got a set of janitor’s keys for the school. They did it because

they were bored. O’Brien Dec. at ¶ 13. They went in at night to goof around, and a fire started.

Eric and the other boys were charged with arson and theft. Eric was sent to the Indiana Boy’s

School. Upon his release, Eric was withdrawn and depressed. He started drinking heavily and

experimenting with marijuana and other drugs. Eric told his mother, “Do you know what happens

to boys in here?” His mother believed that Eric had been sexually assaulted. His juvenile probation

officer at the time also suspected that Eric had suffered from sexual abuse. Dee Eval. at 11.

When Eric started having legal problems, his grandfather reached out to attorney Verdelski

Miller. Verdelski found that Eric was impulsive and lacked any ability to gauge the seriousness of

his legal problems. There was no forethought or sinister intent, but Eric would react without

thinking and could not understand consequences. Even in his late teens, Verdelski observes, Eric

“had the mentality of a twelve year old.” Miller Dec. at ¶ 6. Eric was referred for therapy at

Southern Hills Counseling Center in 1987. The clinician there noted that he “appear[ed] immature

and resistant to assuming responsibility.” Southern Hills Counseling Records at 11.

D. A bright spot in Eric Branch’s life was his relationship with Leora Nosko-
Passmore, and it ended in sadness and loss

Eric finally found some positivity in his life when he started dating Leora Anne Nosko-

Passmore (then Leora Nosko or Annie Nosko). To this day, Leora describes Eric as her soulmate.

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Nosko-Passmore Dec. at ¶ 1. When the two first started dating, Leora and Eric would talk on the

phone for hours. Id. at ¶ 3. Eric would tell Leora about how “hurt he felt by not being loved by his

family, not fitting in, and not being accepted.” Id. His “abandonment” was palpable. Id. He also

told her about Neal’s violence over the years. Eric told Leora that Neal only paid him any attention

when Neal was beating him; otherwise, “Neal had nothing to do with Eric.” Id. at ¶ 6. Leora

describes that this “had a profound impact on Eric.” Id.

Leora’s father was also physically abusive. Id. at ¶ 9. Eric would talk her through the hard

times and encourage her to stand up to him. Leora explains, “In many ways Eric liberated me from

my father.” Id. Eric would stand up to Leora’s father too. One time, Leora’s dad blocked Eric on

the road and tried to beat him up. They got into a fight. When Eric got back to Leora that night, he

was covered in blood. Id.

While Eric was happy about his relationship with Leora, he was still going through a lot in

other aspects of his life. Leora’s mom, Laura Chubick, allowed Eric to come stay with them for a

while. Laura Chubick Dec. at ¶ 2. Laura did not actually like that Eric was dating her daughter,

but she allowed it thinking she could keep a better eye on them. Chubick Dec. at ¶ 8. He was

overjoyed at being invited to do simple family things, like attend the Easter church service with

them. Chubick Dec. at ¶ 7. Eric “loved being included in the family environment. He needed

affection and was longing for somewhere to fit in.” Chubick Dec. at ¶ 7. While Laura’s

acquiescence in Eric’s relationship with her daughter and later invitation to him to come stay with

them was “begrudging,” she realizes in hindsight that “Eric’s relationship with my family was of

utmost importance to him.” Chubick Dec. at ¶ 8. Indeed, Eric told Leora that she and her mother

“were the only people who ever truly love or cared for him.” Id. “We were all he had,” Leora

explained. Nosko-Passmore Dec. at ¶ 8.

15
Laura tried giving Eric some guidance herself, encouraging him to get a job and giving him

the gas money to do so, but Eric was incapable of keeping things together. Chubick Dec. at ¶ 4.

Laura remembers, “He was unable to reason the way a person of his age should. He was always

just going here and there aimlessly.” Chubick Dec. at ¶ 5. Eric was still having problems

controlling his actions and getting into trouble. Leora and her mother were going through a difficult

time with Leora’s own violent father, and they moved with Eric into Leora’s grandmother’s house.

Nosko-Passmore Dec. at ¶ 7. Leora’s mom asked Eric to help around the house, but he could not

do it. Chubick Dec. at ¶ 6. One night there was a huge snow storm coming, and Eric said he was

taking Leora to the next town over. Id. Leora’s mom asked Eric to have Leora home by a certain

time to get home safely before the storm. Id. Not only did they not return home on time, but Eric

had actually taken Leora to another town about two hours away. Id.

Leora noticed Eric’s immaturity herself. He was not goal-oriented. Nosko-Passmore Dec.

at ¶ 12. He would brag about doing juvenile things like skipping school and encouraged her to do

the same. Id. Whenever Eric made any money, he would go on shopping sprees and spend it all

right away. Id. at 14. Once, they went to visit his cousin Alex in Panama City Beach. Nosko-

Passmore Dec. at ¶ 13. Leora thought the trip was planned, but she found out once they were there

that Eric had not even told Alex they were coming. He just decided to go spur of the moment. Id.

Eric was unable to think out the consequences of his actions and acted recklessly around

Leora. One time they were in the car with one of her friends when they got into an argument. Id.

at ¶ 15. The friend was driving down the highway, and Eric, out of anger, reached over and threw

the car in reverse without thinking what could happen. Id.

When Leora was fifteen, she got pregnant with Eric’s child. Nosko-Passmore Dec. at ¶ 2.

Eric desperately wanted a family, and now he would have the opportunity to have one of his own.

16
However, one night when he and Leora were having one of their rough patches, Eric went to a

party with some friends. IN Tr. at 21. They met a couple girls. Id. Eric thought that one of the girls

liked him, so he took her on a moped ride to a more isolated spot. Id. at 21-22. He pushed her

down and touched her breast before realizing that she did not want to go any further with him. Id.

at 23. Eric was convicted of sexual battery, a class D felony in Indiana. The judge sentenced him

to three years in prison with one year suspended. Eric was sent to Rockport Detention Center, an

adult prison.

While incarcerated, Eric kept in touch with Leora about their baby girl, Nicole. They

decided they would give her up for adoption but, wanting to stay in touch with her, would try an

open adoption. Through the help of a minister, they located a stable family out in Washington to

adopt Nicole. Eric wrote Leora from prison encouraging her that this was the best thing for their

baby and that they were doing the right thing.

Eric was devastated over the loss of his daughter. Nosko-Passmore Dec. at ¶ 2. He blamed

Leora for giving their baby away, even though he had fully supported their decision while she was

still pregnant. Id. at ¶ 11. Leora describes, “The most angry and emotional I ever knew Eric to

become was when I tried to break up with him over the phone after the adoption of our daughter .

. . .” Id. at ¶ 10. This was an emotional time for Leora, too, but in his own anguish, Eric blamed

her rather than supported her. Id. at ¶ 11.

In addition to the strain over the adoption of their baby, Leora noticed that Eric was

drinking more than he ever had before after his release from jail. He drank “to medicate.” Id. at ¶

18. He was also angrier and moodier. Leora wondered what was wrong, and Eric opened up to

Leora about his time in R.D.C. Eric was very small for his age, so it was difficult for him to be at

an adult prison. Id. at 16. While at R.D.C., he had been held down by a group of men and brutally

17
gang raped. This experience caused Eric to go “to very dark places.” Id. at 16. While Eric had been

impulsive and made stupid decisions before he went to prison, Leora reports, “I had never seen the

rage in Eric like he had after getting out of prison.” Id. at ¶ 17.

Eric decided to leave Indiana and go to Panama City Beach where Alex was attending

college. Leora joined Eric for about a week, but she ultimately decided to go back to Indiana. She

broke up with Eric one final time. Eric was heartbroken once again. Alex had hoped that, once

Eric got to Florida, he would start taking things seriously, get a job, and start attending the same

college Alex attended. D. Branch Dec. at ¶ 17. Instead, Eric started going to clubs every night,

partying, and drinking. A few weeks later, Eric found himself facing the most severe legal trouble

of his short life.

E. In his extended adolescence, Eric Branch was plagued by his immaturity and
failed to understand the trouble he faced, even when on trial for his life

When Eric arrived in Florida, he was an immature, child-like boy who struggled to grasp

reality. He had been erroneously released from prison in Indiana early but moved to Florida with

his cousin by the time anyone realized it. His lawyer, Verdelski Miller, contacted Eric to come

back to Indiana to clear things up. The lawyer explained that it was not Eric’s fault, so he would

not have gotten into any trouble. Eric still did not understand. He told Verdelski that he would deal

with it later. He did not grasp the urgency in getting it resolved quickly. Miller Dec. at ¶ 7.

After his crimes in Florida, Verdelski arranged Eric’s surrender in Indiana. Once again,

Eric did not grasp how much trouble he was in. Even after Eric was in jail in Florida, he did not

realize the seriousness of his charges. Verdelski traveled to Florida multiple times with Alfred

Branch to visit Eric at the jail. Eric did not understand why Verdelski had not gotten him out on

bail already. Miller Dec. at ¶ 11.

18
Robert, Eric’s brother, testified during both phases of the trial. He knew that Eric did not

understand the gravity of the situation. R. Branch Dec. at ¶ 40. Eric could not grasp that he was on

trial for his life. Burns Dec. at ¶ 4. There were news cameras at the trial, and Eric was distracted

by the cameras instead of paying attention to the witnesses. Id. He bit his lips a lot and kept fixing

his hair. Id. When Eric testified, he was completely calm and did not realize how he was coming

across. Id. at ¶ 6. He did not interact with his attorney or try to assist in his defense. Id. at ¶ 5. He

was used to his grandfather getting him out of trouble, so Eric thought that would happen again.

Observers said, “Given how he was acting at trial, it was so clear that he did not understand the

magnitude of what was going on around him.” Burns Dec. at ¶ 5; see also R. Branch Dec. at ¶ 40.

F. As this submission describes, the mental health professional consensus today


recognizes Mr. Branch’s lack of development and demonstrates that he should
not be subject to capital punishment

Faye E. Sultan, Ph.D., explains that there is a “new mental health professional consensus

that brain development continues into the twenties.” Sultan Report at 17. According to James E.

Garbarino, Ph.D., “our science now recognizes that the cut-off of 18 years is arbitrary, and not in

accord with the current understanding of the scientific community.” Garbarino Report at 1.

“[H]uman brain maturation is ordinarily not complete until the mid-20’s . . . .” Id. at 2.

Today it is established in the medical and scientific literature that brain


development does not reach “full maturity” until approximately the period of mid-
twenties. Synaptic pruning, the process by which brain synapses are selectively
“pruned” or eliminated continues until this time, allowing for more efficient later
brain functioning. The myelination process - the development of the substance
which provides insulation for the nerve fibers – continues as well. This allows a
mature individual to effectively transmit signals, promoting healthy brain
functioning and allowing more complex functions. This process continues until
well-into the individual’s twenties. Also continuing until approximately mid-
twenties is the increasing connectivity between regions of the brain. As these
connections are strengthened, the brain becomes better able to transmit information
between regions and becomes better at planning, dealing with emotions, and
problem-solving.

19
Sultan Report at 21 (emphasis added). Dr. Sultan explains that, “[s]ignificant development of “the

pre-frontal cortex area of the brain” also continues “until at least the mid-twenties.” This is the

region of the brain where “executive functions are developed,” meaning that executive functioning

skills—the skills to “assess risk, think ahead, set goals, and plan ahead” and “[c]omplex planning,

the ability to focus on one thing while ignoring distractions, decision-making, impulse control,

logical thinking, risk management, organized thinking—are not fully developed until a person’s

mid-twenties.” Id.

“This new mental health professional consensus was not available during previous

proceedings in the case of Eric Branch. This new mental health professional consensus has real

consequences in the case of Eric Branch.” Sultan Report at 16. Dr. Sultan concluded that—based

on her assessment of Mr. Branch and on the new scientific information—“Mr. Branch, at age 21,

still had an ‘underdeveloped brain.’” Sultan Report at 17.

Dr. Sultan and Dr. Garbarino explain that this knowledge about the development of an

adolescent brain, like that of Mr. Branch, is new science. Sultan Report at 21-22; Garbarino Report

at 2-3. “The new professional mental health consensus about the developing human brain in the

case of a twenty-one-year-old, such as Eric Branch, was not available to the experts who assessed

this case in the past.” Id. See also Garbarino Report at 1 (“[T]he current scientific understanding

of adolescent brain development was not available during earlier proceedings in Eric Branch’s

case.”). When Dr. Henry Dee assessed Mr. Branch, “the science of brain development had not

progressed to the point where [Mr. Branch’s psychological] problems could be recognized for what

they were: developmental brain immaturity.” Garbarino Report at 3.

Mr. Branch’s prior counsel, S. Douglas Knox, confirms that the science about Mr. Branch’s

immature brain was not available to him when he represented Mr. Branch.

20
This science did not exist at the time I represented Eric or beforehand. It explains
Eric’s immature behavior before and at the time of the offense and during the trial,
and his subsequent maturation by the time I came to represent him. Eric was 21 at
the time of the offense.

Had this new scientific understanding in the mental health professions been
available to me during the time I represented Eric, I certainly would have used it. I
would have litigated that his death sentence was unconstitutional and that he should
not be executed due to the lack of moral culpability related to his immature level of
functioning.

Knox Dec. at ¶ 3-4. The instant submission is the first opportunity Mr. Branch has had to challenge

the constitutionality of his death sentence based on the medical consensus that at the age of 21,

after a lifetime of trauma (including abuse, neglect, and rape) and years of self-medicating with

alcohol, his brain was not fully developed; like seventeen-year-olds, he had diminished moral

culpability, and his execution would serve no penological purpose. Garbarino Report at 4 (“An

individual such as Eric Branch should not be considered eligible for imposition of the death

penalty, given his age of 21 and developmental history.”).

G. Mr. Branch has matured into a reflective man and an engaged father while
incarcerated

Mr. Branch has matured and worked hard to better himself as he grew up while

incarcerated. He received a certificate in paralegal studies. See Blackstone School of Law, Legal

Assistant/Paralegal Certificate, for Eric Branch (March 4, 1996). He spends much of his time

helping fellow prisoners. His disciplinary record has been exemplary. Mr. Branch has worked hard

to build the familial connections he was unable to have earlier. Mr. Branch has stayed in touch

with his daughter, Niki. He sends her letters and artwork regularly. Niki is a talented artist, and

Mr. Branch encourages her in her art. He has also maintained relationships with much of his

family, including his aunt, cousin, and brother. He has reunited with Leora, and remained an

important factor in her life. He cherishes these relationships he has maintained through the years,

21
at one point telling his cousin “The love and connection I share is what defines me. In my own

clumsy way, I have tried to teach Niki this life lesson. The people who love us and who we love –

even if they do drive us nutty – it is these relationships that give life meaning.” Excerpts from Mr.

Branch to Leora Nosko-Passmore; his grandmother; his aunt, Connie Branch; and his cousin, Alex

Branch (2008 to 2013) (hereinafter “Branch Excerpts”).

II. Mr. Branch’s lengthy incarceration on death row and troubling experiences with
Florida’s capital punishment system

Since Mr. Branch’s arrest, the entire history of his representation is a tragic story of the

funding shortfalls of state defender agencies, a failed pilot registry attorney program, conflicts of

interest, and legal abandonment by those who were supposed to be his advocates. Underlying this

history are years of letters Mr. Branch sent to his loved ones documenting the profound stress he

was going through during his lengthy incarceration – years waiting to die while on death row.

A. Mr. Branch struggled to find adequate legal representation

Mr. Branch’s series of inexcusably inadequate attorneys started at his trial. As discussed

previously, in Indiana, the family relied on a local attorney, Verdelski Miller, who had extensive

contacts within the community. When they learned of Mr. Branch’s charges in Florida, Verdelski

and Mr. Branch’s grandfather, Alfred, traveled to Pensacola in the hope of finding someone who

knew the area, especially the courts.

Having never been involved in a capital trial before, Alfred and Verdelski were

unknowingly and woefully underfunded. Alfred offered a flat fee of $15,000 to anyone who would

take his grandson’s capital case. Alfred hired the one lawyer who agreed to this low-budget

defense: John Lewis Allbritton.

Alfred quickly became disillusioned with Mr. Allbritton’s performance. He pleaded with

Mr. Allbritton to hire experts and a mitigation specialist. It was not until February 2, 1994, a month

22
before the trial, that Mr. Allbritton hired a mitigation specialist, Saundra Morgan. In February of

1994, approximately one month before the trial was to start, Alfred submitted an affidavit

conveying his complaints about Mr. Allbritton’s performance, including that Mr. Allbritton had

met with Mr. Branch once, for five minutes; that Mr. Albritton had only met with two members of

the family, Alfred and Marcille, for just an hour and a half; and that Mr. Branch had been declared

partially indigent, so Alfred and Mr. Branch expected the legal team to include an investigator, a

second lawyer, a mitigation specialist, and a psychiatrist.

Finally, Alfred became so frustrated that he appeared in court and demanded to speak to

the Court himself on March 1, 1994, a week before the start of the trial. He wanted to discuss the

affidavit he had submitted about Mr. Allbritton’s performance. The Circuit Court told Alfred there

was nothing it could do, as Alfred had retained Mr. Allbritton. R. 154-56.

After Alfred’s appearance in court, Mr. Allbritton finally went to meet with Mr. Branch.

Other than the brief five-minute introduction in October, this was his first meeting with his client.

On February 23, 1994, Ms. Saunders sent Mr. Allbritton an update on her progress in Mr.

Branch’s case. She informed Mr. Allbritton that her investigation would take at least another five

weeks “to prepare a basic social history” to provide to experts. Mr. Allbritton sought a continuance

on February 28, 1994, which was denied. About a week later, Mr. Branch was found guilty of first-

degree murder. On March 11, 1994, the day the penalty phase was to start, Mr. Allbritton informed

this Court he was not ready to proceed and moved for a continuance. The request was denied,

prompting Mr. Allbritton to initially waive the penalty phase before hurriedly deciding to present

Mr. Branch’s brother and grandfather.

23
B. Mr. Branch’s legal woes continued into his state post-conviction when his post-
conviction team, while initially competent, was disbanded by the Legislature’s
defunding of CCRC-North

The mandate in Mr. Branch’s case was issued by the Florida Supreme Court on February

7, 1997. PC-R. 213. His conviction became final on May 12, 1997, when the United States

Supreme Court denied certiorari review. Branch v. Florida, 520 U.S. 1218 (1997).

Although Mr. Branch’s post-conviction case fell under the jurisdiction of the Office of the

Capital Collateral Counsel for the Northern Region (“CCRC-N”), he was without designated

counsel from the date the mandate issued in February 1997 until October 1, 1998. Id. On May 7,

1998, CCRC-N filed a “shell” 3.850 pleading in the trial court. PC-R. 137-200. The “shell” motion

was filed because CCRC-N was “unable to designate counsel to represent Mr. Branch and prepare

and file his Rule 3.850 motion.” PC-R. 137. The pleading also stated that “Mr. Branch is being

denied his right to counsel, due process and equal protection of the law in pursuing post-conviction

remedies.” PC-R. 138. CCRC-N also filed the incomplete pleading to toll the time to file his

petition for writ of habeas corpus in federal court. PC-R. 139.

Mr. Branch’s initial, and incomplete, 3.850 motion details the struggles of CCRC-N to

adequately represent death row inmates in North Florida, “[d]ue to the budgetary shortfall CCR

experienced in FY 96-97; the retirement, resignations and dismissal of qualified attorneys from

the CCRC-N; and the reorganization of the former office of CCR into three separate and

independent CCRC offices (as required by chapter 97-113).” PC-R. 140.

Andrew Thomas was designated as Mr. Branch’s post-conviction counsel on October 1,

1998. PC-R. 213. Mr. Thomas was immediately confronted with the challenges of the newly-

implemented records collection rules in capital post-conviction claims established in Fla. R. Crim.

P. 3.852 and the creation of the records repository of the Secretary of State. Mr. Thomas filed a

24
motion to stay the applicability of the rule and extend the filing deadline established in Fla. R.

Crim. P. 3.852(g)(1) that went into effect October 1, 1998. PC-R. 213. The circuit court granted

the motion PC.R. 220-221, as well as a second motion to extend the filing deadline for Mr.

Branch’s records requests filed on April 21, 1999. PC-R. 227-236. Ultimately, this Court extended

the filing deadline for Mr. Branch’s amended 3.851 motion to April 1, 2003. PC-R. 603.

Mr. Branch was represented by Heidi Brewer and Jennifer Blakeman of CCRC-N from

1999 to 2003. Michael Reiter was the head of the agency and performed a purely administrative

role during that period of time. Ms. Brewer filed an amended 3.851 motion with a request for leave

to amend on March 31, 2003. PC-R. 601-749.

On May 19, 2003, the Florida Legislature voted to terminate funding of CCRC-N. CCRC-

N’s representation of Mr. Branch officially ended on July 1, 2003, when CCRC-N was eliminated

as an agency. In its place, the Legislature instituted an experimental registry attorney program to

represent death row inmates in their post-conviction claims in North Florida. CCRC-South and

CCRC-Middle remained open. The registry of death penalty lawyers was a pilot program or

experiment in the northern region of Florida that sought to assess whether it was more cost-

effective to out-source capital cases to private attorneys on a local registry rather than continue to

send death penalty cases to the regional Capital Collateral Regional Counsel offices in the

Northern, Middle and Southern regions. Fla. Stat. 27.702(4)(b). The registry program allowed

payment to only one attorney with no oversight as to their level of post-conviction experience in

capital cases or the quality of their representation. A $15,000 cap was allotted for investigation

upon approval of the court, the same allotted for expenses, copying costs, and expert witnesses

upon approval of the court. Registry counsel had no control over whether the court would approve

necessary costs. Registry counsel had to front the money for the costs of travel and experts for an

25
evidentiary hearing. The JAC, which provided payments, could delay payment, challenge funding

requests, or withhold fees. The only time registry counsel could get paid is when certain pleadings

were filed, whether or not it was in the client’s best interest to file them.

Ms. Brewer declined to represent Mr. Branch as his registry attorney, citing the statutory

caps for fees and case expenses. On June 20, 2003, Michael Reiter filed a motion to have himself

appointed as Mr. Branch’s registry attorney under §§ 27.7001, 27.710 and 27.711. PC-R. 861-864.

He represented to the Circuit Court that he had been Mr. Branch’s designated counsel at CCRC-

N. PC-R. 861. This was not quite accurate. Mr. Reiter also wrote that “[s]ince counsel is familiar

with the facts, circumstances and challenges with Mr. Branch’s convictions and sentences and has

met with Mr. Branch several times to discuss his case, Mr. Branch approves of Mr. Reiter’s

continued representation.” PC-R. 862. Despite Mr. Reiter’s representation of Mr. Branch’s

consent, Mr. Branch in fact objected to Mr. Reiter’s appointment and the Circuit Court held a

hearing on Mr. Reiter’s motion on July 14, 2003. PC-R. 865-876. Assistant Attorney General

Cassandra Dolgin appeared on behalf of the State, and she voiced her own concerns about Mr.

Reiter representing Mr. Branch as registry counsel. She reported that Mr. Reiter requested that she

set up the phone conference “because all he had was a cell phone, and obviously being in private

practice, there are going to be some expenditures out of pocket.” PC-R. 869. Ms. Dolgin was

concerned about Mr. Reiter’s ability to front the cost of Mr. Branch’s post-conviction case.

However, the Circuit Court appointed Michael Reiter to serve as Mr. Branch’s registry counsel,

over Mr. Branch’s objections and the concerns of the assistant attorney general. PC-R. 877.

Ms. Dolgin’s concerns were legitimate and foreshadowed of Mr. Branch’s struggles over

the next several years. If Mr. Branch had been represented by a CCRC office, he would have had

access to, at least, two qualified attorneys assigned to his case, one investigator, support staff, a

26
paralegal and research assistance. CCRC retains the right to hire any expert necessary to defend

the case without court approval or disclosure. The agency controls its own budget, including

attorney salaries, guaranteeing them a monthly paycheck. Mr. Reiter was a sole practitioner,

worked out of his garage, and his practice was limited to appointments from the registry.

Mr. Branch later detailed his conflicts with Mr. Reiter in his pro se Motion for Appointment

of Conflict Counsel and Leave to Amend Habeas Corpus filed August 2, 2007 in the United States

District for the Northern District of Florida, infra. As soon as Mr. Reiter was appointed, Mr.

Branch requested that Mr. Reiter file a motion to exceed the fee cap in his case. Mr. Branch was

aware that the meager fee and litigation expense caps were completely inadequate for the

magnitude of investigation and preparation necessary for success in his post-conviction case. Mr.

Reiter eventually filed the motion on the eve of Mr. Branch’s evidentiary hearing. Although Mr.

Branch was never provided an order on the motion, Mr. Reiter told him the Circuit Court had

denied the funding. (Undersigned counsel has conducted a diligent review of the post-conviction

record on appeal and has been unable to locate record evidence that Mr. Reiter filed such a motion.)

Mr. Reiter also refused Mr. Branch’s numerous requests to file a constitutional challenge

to the pilot registry program in his 3.850 motion or his subsequent appeal to the Florida Supreme

Court. Mr. Reiter depended on the registry program for his livelihood, creating an apparent

conflict.

An evidentiary hearing was held the week of April 26, 2004. At the start of the hearing,

Mr. Reiter told the Court, “I do want to mention that . . . you have seen the witnesses are quite

extensive and for the purposes of the record, . . . [some] we have found and because of financial

constraints were not able to appear. Not being CCR anymore, we don’t have the money up front.”

PC-T. 8. Mr. Reiter did not make any other requests following that revelation. The Circuit Court

27
issued its Order Denying Defendant’s Motion to Vacate Judgment and Sentence on March 4, 2005.

PC-R. 1591-1616. On August 31, 2006, the Florida Supreme Court affirmed the order and also

denied Mr. Branch’s petition for writ of habeas corpus. Branch v. State, 952 So. 2d 470 (Fla. 2007).

Rehearing was denied March on 12, 2007.

C. Mr. Branch’s federal court litigation was marred by a years-long search for
conflict free counsel

On March 28, 2007, Mr. Reiter moved to represent Mr. Branch in his federal habeas

proceedings. Branch v. McDonough, N.D. Fla. No. 4:06-cv-486-RH, ECF No. 8. Judge Hinkle of

the Northern District of Florida granted the motion. ECF No. 10. In a pre-Martinez v. Ryan world,

Mr. Branch filed a pro se motion for appointment of counsel on limited bases to argue conflict of

interest claim. ECF No. 11; see also Martinez v. Ryan, 566 U.S. 1 (2012) (holding that “inadequate

assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s

procedural default of a claim of ineffective assistance at trial”). The State opposed appointment

because “[i]neffective assistance of collateral counsel [was] not a cognizable claim in federal

habeas.” ECF No. 12. The Northern District of Florida denied Mr. Branch’s motion. ECF No. 15.

In the meantime, Mr. Reiter filed a motion to adjust the date of his appointment out of concern for

not getting reimbursed for some of the hours he had worked. ECF No. 16.

After a delay in getting the court’s order denying his request for counsel other than Mr.

Reiter, Mr. Branch wrote the court a letter seeking to clarify that he was not asserting ineffective

assistance of collateral counsel, but that he wanted conflict-free counsel. ECF No. 23.

Alternatively, Mr. Branch stated, “Since there was a state-created bar to raising the issues pro se

in state court, this court should develop and hear each.” Id. Mr. Branch explained, “There are some

serious issues in play, with life and death implications that must be answered. And while I can

28
write a neat motion – even quote law if provided time to find it. But I am not a attorney [sic] and

I cannot be expected to properly argue the issues.” Id.

On August 2, 2007, Mr. Branch filed another motion for appointment of conflict counsel

and leave to amend habeas corpus. ECF No. 21. In that motion, Mr. Branch more clearly laid out

the conflict of interest points relating to Mr. Reiter’s representation of him in his § 2254 petition.

Id. His motion was based on his desire to challenge the failed registry system and the problems he

had with Mr. Reiter’s conflict during his state court proceedings. Id. The District Court ultimately

would deny the request because of a prohibition on pro se filings by a petitioner represented by

counsel. ECF No. 22.

Mr. Branch wrote a letter to the clerk asking about the status of his August 2, 2007, motion.

ECF No. 24. He also filed a motion to stay habeas corpus proceedings until conflict counsel issue

was resolved. ECR No. 27. The district court again declined to review pro se pleadings. ECF No.

26. Mr. Branch filed another motion requesting a ruling on the merits. ECF No. 28. Mr. Branch

wrote,

Here, Petitioner would much rather find these issues presented by counsel.
Certainly, he never wanted to find himself stuck in a position of having to file pro
se motions to protect his appeals. But as he has found himself in that position, with
all do [sic] respect to this court, Petitioner cannot locate a single court ruling
supporting the proposition that when faced with representation by counsel
practicing under a conflict of interest, a petitioner must first provide that attorney a
[sic] opportunity to file a claim against his own self-interest.

Id. The district court denied these motions. ECF No. 29.

Mr. Branch continued to be proactive about finding new representation. In January of 2010,

he told his aunt that he had spent the last month and a half writing letters to lawyers. Branch

Excerpts.

29
The district court denied relief on Mr. Branch’s § 2254 petition on March 30, 2010. Branch

v. McDonough, 779 F. Supp. 2d 1309 (N.D. Fla. 2010). Mr. Branch panicked. He wrote to his

grandmother:

[T]his basically means, unless I can create something, I have about 7 months,
maybe a year of appeals left. After they are gone. Assuming I win nothing than [sic]
it’s up to the governor. It could be a week. It could be 10 yrs after. But he can sign
my warrant at any moment after my appeal expires. And given my case, I assume,
I will be at or near the top of the list.

Branch Excerpts.

On April 27, 2010, Mr. Branch sent his first letter to the American Bar Association Death

Penalty Project begging for help. His letter began: “Sorry to be so blunt but I need an attorney.”

Letters from Mr. Branch to the American Bar Association Death Penalty Representation Project

(hereinafter “Branch Letters to ABA”). His grandmother also reached out to Emily Williams (now

Emily Olson-Gault), an attorney with the ABA’s Project, sending her a copy of Mr. Branch’s

pleadings. See Petitioner’s 1983 Civil Rights Action. This began a years-long struggle by the ABA

to find someone to take Mr. Branch’s case. See ABA Letter.

After receiving the letters from Mr. Branch and his grandmother, Ms. Olson-Gault reached

out to her Florida colleagues to get a status on Mr. Branch’s case. In a letter describing the ABA’s

involvement with Mr. Branch, she wrote:

Through them we confirmed that pro bono assistance was needed and also learned
about the troubling history of counsel appointments and turnover in Mr. Branch’s
case, including the loss of his CCRC-North team during the now-abandoned
experiment with relying on a registry counsel system, and the replacement of that
team with severely under-resourced counsel.”

ABA Letter.

Mr. Branch filed a pro se motion to amend or alter the judgment. ECF No. 39. Mr. Branch

also filed a motion to hold the notice of appeal in abayance [sic] and grant leave to file amended

30
notice of appeal, ECF No. 38, and for tolling of his deadline to file the certificate of appealability.

ECF No. 37. As he is a prisoner with no income, doing so came at a great cost to him. In a letter

to his grandmother, Mr. Branch explained, “I had to mail 4 copies to the court. That cost me $10.95

as I had to put it in a priority box. Mail cost is killing me . . . . I refuse to simply give up.” Branch

Excerpts.

Mr. Branch wrote the Court yet again notifying the Court of his pro se status. ECF No. 36.

He informed the court that Mr. Reiter was no longer representing him, writing that he was

“examining his options” for retaining a lawyer for his Eleventh Circuit appeal. Id. Subsequently,

the court denied Mr. Branch’s post-judgment motions. ECF No. 45. Mr. Branch amended his pro

se notice of appeal to include the denial of these motions. ECF 47.

After all district court litigation had been completed, Mr. Reiter filed a motion in the

Eleventh Circuit to withdraw from Mr. Branch’s case, in part because he had a conflict since he

was a registry attorney and Mr. Branch was attempting to challenge the registry system. See ECF

No. 73.

On June 22, 2010, Mr. Branch wrote Ms. Olson-Gault to inform her that Mr. Reiter had

requested to withdraw from the case. Branch Letters to ABA. He continued to send her copies of

the pro se motions he was filing in federal court. Id. He wrote, “If you cannot find anyone willing

to help, please let me know. Because with a death sentence hanging over my head, I don’t want to

get stuck with no representation. I’m not a fool.” Id.

On April 21, 2011, the Eleventh Circuit denied Mr. Branch and Mr. Reiter’s attempts to

get Mr. Reiter off the case. Mr. Branch continued to write to Ms. Olson-Gault. He wrote, “It’s

getting dire. I gotta have a [sic] attorney or else the 11th Circuit is going to force me to accept

31
representation from a [sic] attorney who informed the court he could not ethically represent me.”

Id.

Mr. Branch doubted Mr. Reiter’s dedication to his appeal. In a letter he wrote at that time,

Mr. Branch stated:

My lawyer. He does not want the appeal. He is mad that the court won’t let him
quit. In return, he is just tossing something in front of the court trying to get it done
and over. This frightens the hell out of me. His apathy has already wrecked my
appeal. I simply cannot afford more of the same.

Branch Excerpts.

The Eleventh Circuit affirmed the circuit court’s denial of relief. Branch v. Sec’y, 638 F.3d

1353 (2011). Ms. Olson-Gault and the ABA then shifted their efforts to find someone to represent

Mr. Branch in a § 1983 action or file an F.R.C.P. 60(b) motion on his behalf. She explains, “The

hope was to obtain extraordinary relief and reopen post-conviction proceedings so that the claims

that had been abandoned by prior counsel could be fully investigated and litigated for the first

time.” ABA Letter.

Completely without representation at this point, Mr. Branch filed a pro se certiorari petition

in the United States Supreme Court. He sent Ms. Olson-Gault a copy. Mr. Branch’s sense of panic

was palpable at this point. He told her:

Once the Court denies [the petition], as inevitably they will, my name will be added
to the ‘Ready List.’ As a [sic] attorney, I am sure you know what I mean by that.
Once I am on the list, staying there 3 months is normal. Remaining there 3 yrs is
extraordinary. Meaning I have up to 3 months but less than 3 yrs to make something
happen or die.

Branch Letters to ABA. While Ms. Olson-Gault was aggressively trying to find someone for Mr.

Branch, he remained proactive and sent her suggestions of people to contact. See ABA Letter. His

cousin, Alex Branch, sent emails with copies of Mr. Branch’s pleadings to attorneys and

organizations all over the country. See Emails from Alex Branch to Capital Defense Lawyers.

32
On March 5, 2012, the United States Supreme Court denied Mr. Branch’s certiorari

petition. Branch v. Tucker, 565 U.S. 1248 (2012). Mr. Branch immediately started bracing himself

for execution. Later that month, in a letter to Leora, he wrote:

In the next 30 to 45 days I will be placed on the ‘Ready List’ after which the
governor can kill me at any time he wants. A scary thought with the sudden rush to
execute guys down here. Since last I wrote, they killed a man I called friend . . . .
There is no hope of lasting 3 years on the Ready List for the simple fact they will
run out of people on the list long before that and have to kill me.

Branch Excerpts. Less than a month later, Mr. Branch received a copy of correspondence to

Governor Scott’s office notifying Governor Scott that Mr. Branch had exhausted his appeals. Mr.

Branch wrote, “Julie McCall . . . inform[ed] Governor Scott that I am ready to be executed. Well,

I am not ready but that is of little consequence. They are ready for me.” Id. Mr. Branch went on to

bluntly state, “No escaping it any longer. It is here. Basically, whenever the Governor wants me

to die, I will.” Id.

Mr. Branch’s attempts to predict when he would die continued. Shortly after his clemency

hearing, he wrote:

Another concern. It’s based on rumor. The governor has a list of 17 men, myself
included. They are rushing clemency proceedings, hoping to execute us 17 during
his term. I cannot confirm that fact . . . . But this much is clear. My two neighbors
appeals were over years ago. Neither of them have had clemency. Whereas I, in 5
months since my last appeal, have had a hearing.

Id.

Left with little to think of except his pending execution, Mr. Branch wrote, “Most days I

don’t even feel like opening my eyes. I am constantly tired, sad, lonely, hungry, and generally

miserable . . . .” Id. Mr. Branch, a man who for years had so proactively fought to save his life,

finally stated, “Often I think I should disappear, leaving everybody . . . alone as I vanish from

33
existence. . . . My mind is full of these struggles which lately seem to take up more of my time

than legal work.” Id.

In January 2013, almost a year after the United States Supreme Court had denied certiorari

review, Mr. Branch told his cousin, “Way too much damn stress. I feel like somebody has been

standing behind me with a gun to my head for a year now. It’s fucking exhausting.” Id. A few

months later, Mr. Branch wrote:

The tough part is that now everyone they are killing has been here with me for 20
years. Its [sic] kind of like coming into work and finding every month another
person you’ve worked in the office with for 20 years has been taken out back and
killed. Even when it’s not you, it’s so much stress.

Id.

In the spring of 2013, the “Timely Justice Act” made its way through the Florida

legislature. Mr. Branch was certain this meant his execution was imminent. He said to his cousin,

I am a bit panic-stricken and filled with an overwhelming sense of dread. Honestly,


I wish I could but I simply don’t know how to break free of it. With each motion
and letter to the attorneys, the Florida Bar, the courts, it becomes increasingly clear
that I probably am not going to see another year – possibly another winter. Hope is
in short-supply and without hope, is it possible to break free and escape the dread?

Id.

The Act made it even harder to obtain representation. On June 12, 2013, Ms. Olson-Gault

contacted Alex Branch to make him aware of the Act and its effects on the ABA’s efforts. She

warned him, “We are continuing to try to recruit someone for Eric’s case, but particularly with all

the uncertainty regarding the new law, firms are reluctant to get involved.” Email from Emily

Olson-Gault, American Bar Association, to Alex Branch (June 12, 2013).

Mr. Branch started planning a legal challenge to the registry system. He sent the petition

to his family to type. Branch Excerpts. Mr. Branch was still concerned about the three month wait

on the “Ready List,” and he planned his filings around that time. Id.

34
On June 23, 2013, Mr. Branch filed a 192-page motion for appointment of counsel and

supporting memorandum of law. ECF No. 68. The motion noted then-recent Supreme Court

decisions Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013). Since

exhausting his appeals in federal court, Mr. Branch had returned to state court to file a successive

3.851 motion and also filed a § 1983 action based on those decisions. Id. The State opposed

appointment of counsel to represent Mr. Branch in those actions. ECF No. 69. It argued that Mr.

Branch could have counsel to represent him through warrant litigation and nothing else. Id. In his

reply, Mr. Branch wrote:

It must be noted that unlike the majority of petitioners filing claims under Martinez,
here, the record will reflect that beginning in state court, Petitioner repeatedly
attempted to inform the courts about his lawyer and, [sic] all the courts, including
this one, silenced Petitioner, denying/voiding his pleadings on the State’s argument
that they were illegal filings or that because he had no constitutional right to
counsel, he had no right to effective or conflict free counsel.

ECF No. 70. Mr. Branch went on to argue that because of the registry system, “constitutionally

meritorious claims have gone without review or remedy.” Id. The district court granted Mr.

Branch’s motion and allowed access to his court file “to any attorney who indicates the attorney

is willing to consider accepting an appointment.” ECF No. 71.

A month later, the district court ordered Mr. Branch to find his own counsel to be appointed

by the Court. ECF No. 73. In that order, the court noted that the Eleventh Circuit had permitted

Mr. Reiter to withdraw from Mr. Branch’s case. Id. The court lamented that it was “no easy task”

to find representation for Mr. Branch. Id. The court went on, “At my direction, my staff has

contacted attorneys to determine their willingness to accept an appointment. None have agreed to

do so.” Id. The court then gave Mr. Branch ninety days to find his own attorney. Id.

Following the court’s order, Mr. Branch immediately contacted his cousin to suggest more

names and firms. Branch Excerpts. Alex Branch reached back out to many of the attorneys he had

35
previously contacted to let them know the court would ensure payment for their service. See Emails

from Alex Branch to Capital Defense Lawyers. Mr. Branch updated Ms. Olson-Gault: “I’m hoping

the fact the court has agreed to appoint and thus pay whoever I find will be enough to pursuade

[sic] someone to say yes.” Letters from Branch to ABA.

In the fall of 2013, Ms. Olson-Gault was able to find a team of local lawyers to help her

find a firm to take on Mr. Branch’s case, including Karen Gottlieb and Sonya Rudenstine. Another

ABA attorney, Becca Eden, was also assisting Ms. Olson-Gault. With all their contacts, they still

struggled to find anyone who could take on Mr. Branch’s case by the deadline.

Meanwhile, Mr. Branch grew increasingly concerned when Governor Scott signed a

warrant for Mark Kimbrough, who had had his clemency hearing on the same day as Mr. Branch.

Branch Excerpts. Mr. Branch told Leora that Governor Scott was going to sign warrants for the 13

men who had had their clemency hearings during his term before moving on to others who had

exhausted their appeals. Id. The Timely Justice Act had struck a stronger sense of paranoia on

death row, and the men wondered to themselves how many warrants would be signed at one time.

Mr. Branch described the tense environment:

Now, every time the door opens, it falls quiet, everybody wondering if he did it . .
. signed all our warrants or is he coming after just one of us today . . . . Anybody
who survives this will be driven nuts, watching 120 people they know get killed,
wondering at each open door – am I next? It’s too much.

Id.

Mr. Branch’s increasing stress was known to those trying to assist him. On November 7,

2013, Ms. Olson-Gault wrote to Ms. Rudenstine, “[H]e is understandably stressed about the

situation.” More than a month later, the ABA was still struggling to find representation for Mr.

Branch. In an email to Ms. Gottlieb, the ABA wrote, “I want to provide an update that we are still

looking for counsel to assist you and Sonya with the case but have had no luck this far.” Feeling

36
they needed more contacts, Ms. Gottlieb reached out to Stephen Harper who runs the capital trial

defense law clinic at Florida International University Law School. Even after Ms. Gottlieb

recruited Mr. Harper, on December 11, 2013, she told him and Ms. Rudenstine, “[E]very

competent capital attorney has been contacted and refused to take Eric’s case.”

On November 15, 2013, Sylvia Walbolt of Carlton Fields PA offered her assistance and

sent a letter to the court requesting more time to find Mr. Branch a lawyer. ECF No. 74. The court

extended the deadline. ECF No. 75.

Mr. Branch submitted his own update to the court on December 4, 2013. ECF No. 76. Mr.

Branch noted the efforts of the ABA. Id. He also mentioned that his cousin and Ken Driggs, a

former CCR attorney, were conducting their own search for counsel. Id. Mr. Branch promised

another update by December 15, 2013. Id.

In his status report to the court, Mr. Branch documented his extensive search for

representation. ECF No. 77. He included his years-long correspondence with the American Bar

Association. Id. He noted Alex Branch’s exhaustive attempt to find counsel, including a list of the

various lawyers and organizations that Alex Branch had contacted. Id. The search included local

members of the capital defense community, as well as capital defense lawyers, experts, such as

Professor Michael L. Radelet, Ph.D., and Supreme Court litigators, such as Seth Waxman. Id. Alex

Branch also quickly contacted the newly-formed Capital Collateral Regional Counsel – North. Id.

In his status report, Mr. Branch wrote:

Petitioner is well aware that in capital cases who lives and who dies is often more
the result of quality of counsel than the crime they are accused of committing. As
Petitioner’s report and appendix demonstrates, he is giving the search for counsel
that degree of seriousness, reaching out into the world to every connection he has
made the past twenty years . . .

37
Id. In a 78-page appendix, Mr. Branch included correspondence he and Alex Branch had had with

attorneys and organizations across the country in an effort to find a lawyer. Id.

After a three and a half year search, Ms. Olson-Gault found counsel for Mr. Branch. On

December 23, 2013, Mr. Branch notified the court that the ABA had been able to find a local

lawyer, Jason Cromey of Pensacola, and Doug Knox, of Quarles & Brady, to represent Mr. Branch.

Id. On December 24, 2013, the district court appointed Jason Cromey to represent Mr. Branch in

any collateral proceedings under the Criminal Justice Act. ECF No. 79.

In all, the ABA pitched Mr. Branch’s case to more than a dozen law firms nationwide.

Letter from the ABA Death Penalty Representation Project to Kimberly Newberry (January 25,

2018) (hereinafter “ABA Letter”). His case had been highlighted in emails to over 100 law firm

pro bono coordinators and during “recruitment meetings hosted by state and federal judges in

several cities.” Id. Ms. Olson-Gault remembers Mr. Branch’s frequent contact in getting updates

and sending suggestions through the entire search. Alex Branch also routinely communicated with

her. Ms. Olson-Gault writes of Mr. Branch: “He was as diligent and persistent in seeking

representation and trying to preserve his claims as any death-sentenced prisoner I have encountered

in my many years of working with the Project.” Id. Indeed, in 60 letters to various family members

through the years, Mr. Branch mentioned the problems he was having with is attorneys, strategies

for getting a new attorney, or pleadings he was drafting himself due to his dearth of adequate

counsel. See Branch Excerpts.

Ultimately, by the time the ABA confirmed pro bono counsel for Mr. Branch, it was too

late. When Mr. Branch first wrote the ABA, the district court had just denied his § 2254 petition.

When James Cromey and Doug Knox filed their notices of appearance, Mr. Branch’s Eleventh

38
Circuit appeal and petition for writ of certiorari were long since denied. As Ms. Olson-Gault

describes:

[I]t is extremely regrettable that it took so much time to secure representation for
Mr. Branch, because his case was in a very difficult procedural posture by the time
those pro bono lawyers finally took over. We recognize that if we had been able to
find a law firm sooner – or if Mr. Branch had received consistent, qualified
representation from court-appointed counsel throughout the case – his current legal
situation might be different.

ABA Letter.

III. Grounds for Relief

Claim 1: MR. BRANCH’S DEATH SENTENCE IS PRECLUDED BY THE EIGHTH


AMENDMENT BECAUSE THERE IS AN EMERGING CONSENSUS
THAT BRAIN DEVELOPMENT CONTINUES INTO THE MID-
TWENTIES, RENDERING PEOPLE IN THEIR EARLY TWENTIES,
SUCH AS MR. BRANCH, COGNITIVELY COMPARABLE TO
JUVENILES UNDER THE AGE OF EIGHTEEN

I. This claim satisfies procedural requirements and this Court has the authority to grant
a hearing and relief on the merits

A. This claim satisfies the procedural requirements of Fla. R. Crim. P.


3.851(e)(2) and should be decided on the merits

Defendant’s claim that his execution would violate the Eighth Amendment due to his

cognitive underdevelopment, satisfies the procedural requirements of Fla. R. Crim. P. 3.851(e)(2).

Emerging medical science not available during Defendant’s prior litigation establishes that human

brain development, once thought to be functionally completed by the late teenage years, continues

into an individual’s mid-twenties, rendering those in their early twenties cognitively comparable

to juveniles under the age of eighteen. This emerging science is a valid basis for assessing

Defendant’s claim on the merits, under the newly-discovered evidence prong of Rule 3.851(e)(2).

Florida’s courts have long understood, and recently reaffirmed, that emerging science can

constitute newly discovered evidence for purposes of post-conviction litigation. See, e.g., Duncan

39
v. State, No. 2D16-2625, 2017 WL 1422648, at *2 (Fla. 2d DCA Apr. 21, 2017) (“[W]e disagree

with the postconviction court’s conclusion that scientific evidence in the form of articles and

studies cannot constitute newly discovered evidence.”); Clark v. State, 995 So. 2d 1112, 1113 (Fla.

2d DCA 2008) (holding that new scientific evidence could be considered newly discovered

evidence); Zamarippa v. State, 100 So. 3d 746, 747 (Fla. 2d DCA 2012) (reversing and remanding

for an evidentiary hearing because a scientific organization’s new report on comparative bullet-

lead analysis could constitute newly discovered evidence); Murphy v. State, 24 So.3d 1220, 1222

(Fla. 2d DCA 2009) (same).

The Florida Supreme Court has also consistently held that new scientific evaluations

relating to evidence presented in a defendant’s prior litigation can qualify as newly-discovered

evidence. For example, mental health examinations conducted years after trial can produce newly-

discovered evidence. See State v. Sireci, 502 So. 2d 1221 (Fla. 1987). Scientific advances also give

rise to “newly discovered evidence claims predicated upon new testing methods or technologies

that did not exist at the time of trial, but are used to test evidence introduced at the original trial.”

Wyatt v. State, 71 So. 3d 86, 100 (Fla. 2011); see also Preston v. State, 970 So. 2d 789, 798 (Fla.

2007) (holding new DNA testing of pubic hair constituted newly discovered evidence); Hildwin v.

State, 951 So. 2d 784, 788-89 (Fla. 2006) (holding new DNA testing of semen and saliva was

newly discovered evidence).

To the extent Florida has not yet grappled with the specific question whether emerging

science since Roper v. Simmons, 543 U.S. 551 (2005)—establishing that individuals in their early-

to-mid-twenties are no more cognitively developed than individuals in their mid-to-late teens—

can constitute newly-discovered evidence for purposes of successive post-conviction litigation,

this Court should hold that such evidence does satisfy procedural requirements in Florida.

40
Defendant’s claim goes to the fundamental premise of Roper’s holding that the Eighth Amendment

prohibits the death penalty for juveniles, and suggests that a modification of that premise in

Florida, from a rigid cutoff of 18 years old, to a more holistic approach that allows individuals in

their twenties to demonstrate that they are the cognitive equivalent of juveniles, is necessary to

prevent a miscarriage of justice in this case.

Any uncertainty over whether Defendant’s newly presented evidence constitutes newly

discovered evidence within the meaning of Rule 3.851(e)(2) should be resolved at an evidentiary

hearing. See Swafford v. State, 679 So.2d 736 (Fla. 1996) (remanding to the trial court for an

evidentiary hearing on whether evidence was newly-discovered for purposes of successive post-

conviction litigation). This is especially true in a capital case. See id. at 740-41 (Harding, J.,

concurring) (explaining that, to the extent using newly discovered evidence to attack a judgment

is inconsistent with the concept of finality, “it is an inconsistency that comports with fairness in

certain circumstances . . . . While finality is important in all legal proceedings, its importance must

be tempered by the finality of the death penalty.”); see also Jones v. State, 678 So. 2d 309, 310

(Fla. 1996) (staying execution and remanding for an evidentiary hearing to determine whether

some of the evidence proffered was newly discovered).

As set forth below, Defendant’s evidence regarding the emerging science on cognitive

brain development, considered cumulatively with all of the evidence in this case, establishes that

the Eighth Amendment principle announced in Roper applies equally to his case and prohibits his

execution based on his age and cognitive brain development at the time of the offense. See Hildwin

v. State, 141 So. 3d 1178 (Fla. 2014) (explaining that the impact of newly-discovered evidence

must be evaluated in combination with the totality of the evidence in the case). In accord with

these principles, prior counsel explains that this claim could not have been raised before. Knox

41
Dec. at ⁋ 3-4 (“This science did not exist at the time I represented Eric or beforehand. . . . Had

this new scientific understanding in the mental health professions been available to me during the

time I represented Eric, I certainly would have used it.”).

B. This Court has the independent authority to grant more expansive


constitutional relief

This Court has the authority to grant expansive constitutional relief on Defendant’s claim

than the minimum standard set forth in Roper. The United States Supreme Court has not yet

addressed whether Roper’s prohibition on the execution of juveniles who were under age 18 at the

time of the offense should be expanded to include individuals like Defendant, who was in his early

twenties at the time of the offense but was in a medical sense no more cognitively developed than

a person in his mid-teens. But this Court need not await a ruling from the United States Supreme

Court on that issue before granting relief. While Roper sets the minimum standards, or

constitutional “floor,” the Florida Supreme Court has long recognized that Florida’s state courts

are empowered to provide defendants greater-than-minimum protections.

The Florida Supreme Court recently reaffirmed the prerogative to grant more expansive

relief under the Eighth Amendment, as well as the corresponding provisions of the Florida

Constitution, even where the United States Supreme Court had not directly addressed the issue at

hand. In Hurst v. State, 202 So. 3d 40, 59-60 (Fla. 2016), the Florida Supreme Court held that,

despite the United States Supreme Court’s decision to address only the Sixth Amendment

implications of Florida’s prior capital sentencing scheme, the Florida Supreme Court was

empowered to rule that the scheme violated the Eighth Amendment and accordingly to grant relief.

Id. at 50 (“Although the United States Supreme Court has not ruled on whether unanimity is

required in the jury’s advisory verdict in capital cases, the foundational precept of the Eighth

Amendment calls for unanimity in any death recommendation that results in a sentence of death.”);

42
see also id. at 74 (Pariente, J., concurring) (explaining that because the United States Supreme

Court had not addressed the relevant Eighth Amendment question, the Florida Supreme Court

could properly consider and decide the matter itself for Florida).

As another example, before the United States Supreme Court held that its Eighth

Amendment decision barring mandatory life sentences for juveniles must be applied retroactively

on collateral review, the Florida Supreme Court had already applied the decision retroactively to

all Florida defendants in Falcon v. State, 162 So. 3d 954 (Fla. 2015), under its independent

authority to expand upon the minimum constitutional standards set by the United States Supreme

Court. See also Danforth v. Minnesota, 552 U.S. 264, 280 (2008) (noting that states are free to

expand protections “as long as they do not infringe on federal constitutional guarantees”).

Roper set the floor of constitutional protection for juveniles facing the death penalty. This

Court need not await guidance from the United States Supreme Court on whether the Eighth

Amendment also protects from execution those like Defendant who were the cognitive, if not

numerical, equivalent of juveniles at the time of their defense. This Court has the authority to and

should reach Defendant’s claim on the merits now, based upon Eighth Amendment’s requirements,

and create a record upon which the Florida Supreme Court and, if necessary, the United States

Supreme Court can exercise their appellate judgment.

II. It is cruel and unusual punishment to impose death sentences on those in their late
teens and early twenties, functional adolescents whose culpability is comparable to
juveniles under eighteen

Mr. Branch’s execution would violate the Eighth Amendment. He was twenty-one years

old at the time of the offense. While the United States Supreme Court has already precluded capital

punishment for juveniles under the age of eighteen, see Roper v. Simmons, 543 U.S. 551 (2005),

the evolving standards of decency today show that extended adolescents in their late teens and

43
early twenties also do not have the requisite culpability to be sentenced to death. Today’s newly

developed science in the area of adolescent brain development shows that extended adolescents

are more comparable to their younger counterparts than they are to people with matured adult

brains. While twenty-one-year-olds generally bear these characteristics, Mr. Branch in particular

had cognitive delays due to his traumatic childhood and history of adolescent alcohol and

substance abuse. Accordingly, Mr. Branch’s execution would be a violation of the Eighth

Amendment protection against cruel and unusual punishment.

A. The Eighth Amendment prohibits cruel and unusual, as well as excessive,


punishment and envisions a fluid concept determined by the evolving
standards of decency
The Eighth Amendment provides that “[e]xcessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments inflicted” and prohibits “all excessive

punishments, as well as cruel and unusual punishments that may or may not be excessive.” Atkins

v. Virginia, 536 U.S. 304, 311 n.7 (2002); see also Enmund v. Florida, 458 U.S. 782, 788 (1982).

To align with the Eighth Amendment, a punishment must be “graduated and proportionate to [the]

offense.” Weems v. United States, 217 U.S. 349, 367 (1910). Whether a punishment is

proportionate is determined by the evolving standards of decency, since “the standard of extreme

cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself

remains the same, but its applicability must change as the basic mores of society change.” Kennedy

v. Louisiana, 554 U.S. 407, 419 (2008) (citing Furman v. Georgia, 408 U.S. 238, 382 (1972)

(Burger, J., dissenting)). Accordingly, the Eighth Amendment guarantee is not restricted by those

punishments deemed unconstitutional during the eighteenth century when the Bill of Rights was

originally drafted. Gregg v. Georgia, 428 U.S. 153, 171 (1976). The standard is ever-changing as

“public opinion becomes enlightened by a humane justice,” Gregg, 428 U.S. at 171 (citing Weems,

217 U.S. at 378), and it is a well-established principle that “[t]he Amendment must draw its

44
meaning from the evolving standards of decency that mark the progress of a maturing society.”

Trop v. Dulles, 356 U.S. 86, 101 (1958). 6

The Eighth Amendment places strict limits on how far the government can go in exercising

the “power to punish.” Kennedy, 554 U.S. at 435. It must stay “within the limits of civilized

standards.” Trop, 356 U.S. at 100. The Supreme Court has also stated that “[t]he basic concept

underlying the Eighth Amendment is nothing less than the dignity of man.” Id. The “[e]volving

standards of decency must embrace and express respect for the dignity of the person, and the

punishment of criminals must conform to that rule.” Kennedy, 554 U.S. at 420.

The concern over cruel and unusual punishment becomes even more significant when a

person’s life is at stake. When this happens, “the Court has been particularly sensitive to insure

that every safeguard is observed,” because “[t]here is no question that death as a punishment is

unique in its severity and irrevocability.” Gregg, 428 U.S. at 187. Accordingly, there are two rules

that courts must follow when imposing a sentence: “First, the punishment must not involve the

unnecessary and wanton infliction of pain. Second, the punishment must not be grossly out of

proportion to the severity of the crime.” Id. at 173 (internal citations omitted). When applied to the

death penalty, a death sentence “is excessive when it is grossly out of proportion to the crime or it

does not fulfill the two distinct social purposes served by the death penalty: retribution and

deterrence of capital crimes.” Id. at 183. The sentence must meet both of these conditions, since

6
“[E]volving standards of decency” necessarily evolve, and what may have been acceptable to the
courts and society at large historically may not prove acceptable later in time. Compare Penry v.
Lynaugh, 492 U.S. 302 (1989) (holding constitutional the execution of intellectually disabled
people), with Atkins, 536 U.S. at 319 (prohibiting the execution of intellectually disabled people);
compare Stanford v. Kentucky, 492 U.S. 361, (1989) (holding constitutional the execution of
offenders under 18 years), with Roper, 436 U.S. at 560 (prohibiting the execution of offenders
under 18 years).
45
“[a] punishment might fail the test on either ground.” Kennedy, 554 U.S. at 441 (citing Coker, 433

U.S. 584, 592 (1977)).

When deciding the proportionality of a death sentence, “the Court [also] insists upon

confining the instances in which the punishment can be imposed.” Id. at 420. The result has been

that the death penalty is only proportionate when used for “‘a narrow category of the most serious

crimes’ and on those whose extreme culpability makes them ‘the most deserving of execution.’”

Id. (citing Roper, 543 U.S. at 568). Accordingly, when capital punishment was reintroduced in

1976, the trend nationwide was to provide factors to narrow the jury’s discretion when deciding

who fits into that category. See, e.g., Roper, 543 U.S. at 568 (recognizing that the death penalty

should be reserved for “the worst of the worst”).

At the same time as narrowing the death penalty’s use, however, the Court has also

emphasized the importance of considering the individual circumstances of each offender and the

underlying crime. Woodson v. North Carolina, 428 U.S. 280, 304 (1976). “Given that the

imposition of death by public authority is so profoundly different from all other penalties, . . . an

individualized decision is essential in capital cases.” Lockett v. Ohio, 438 U.S. 586, 605 (1978).

The jury may not be “precluded from considering, as a mitigating factor, any aspect of a

defendant’s character or record and any of the circumstances of the offense that the defendant

proffers as a basis for a sentence less than death.” Id. at 604. However, because of “the resulting

imprecision and the tension between evaluating the individual circumstances and consistency of

treatment,” courts must “insist upon confining the instances in which capital punishment may be

imposed.” Kennedy, 554 U.S. at 440.

There are times, then, when a death sentence is unconstitutionally excessive. In light of

these principles, the Supreme Court has adopted two steps when faced with excessiveness claims

46
regarding the death penalty. It first looks to “objective indicia of society’s standards, as expressed

in legislative enactments and state practice with respect to executions.” Roper, 543 U.S. at 563.

To make this assessment the Court generally considers “the historical development of the

punishment at issue, legislative judgments, international opinion, and sentencing decisions juries

have made . . . .” Enmund, 458 U.S. at 788. After the objective indicia, the Court moves to the

second step, which considers proportionality in light of the “standards elaborated by controlling

precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s

text, meaning, and purpose.” Kennedy, 554 U.S. at 421. This second step is the more dominant

factor. Enmund, 458 U.S. at 797 (“Although the judgments of legislatures, juries, and prosecutors

weigh heavily in the balance, it is for us ultimately to judge whether the Eighth Amendment

permits imposition of the death penalty.”). By using this test, the Supreme Court has found the

death penalty unconstitutionally excessive when used against those who have not committed

homicide, see Kennedy, 554 U.S. at 421; Enmund, 458 U.S. at 801; Coker, 433 U.S. at 59; those

with intellectual disabilities, see Atkins, 536 U.S. at 321; and juveniles under eighteen, see Roper,

543 U.S. at 578. Such decisions are made in light of the underlying principles of narrowing the

death penalty’s use and exercising restraint on potential brutality, and in doing so courts must

ensure that only those viewed as having the most severe culpability face execution.

As part of the evolving standards of decency, it is important to consider the consensus of

the medical community and scientific data in determining where to draw the lines of culpability.

For example, in Hall v. Florida, 134 S. Ct. 1986 (2014), the Supreme Court relied heavily on the

standards the medical community had devised for determining intellectual disability. As the Court

explained in Kennedy:

That this Court, state courts, and state legislatures consult and are informed by the
work of medical experts in determining intellectual disability is unsurprising. Those

47
professionals use their learning and skills to study and consider the consequences
of the classification schemes they devise in the diagnosis of persons with mental or
psychiatric disorders or disabilities. Society relies upon medical and professional
expertise to define and explain how to diagnose the mental condition at issue.

Kennedy, 134 S. Ct. at 1993. In Hall, the Supreme Court found that Florida’s brightline test

precluding anyone with an I.Q. score of over 70 ignored the medical consensus that I.Q. score

alone is not conclusive evidence of a person’s intellectual capacity, while also disregarding the

imprecision of I.Q. testing. Hall, 134 S. Ct. at 1995. For this reason, the Court found:

The death penalty is the gravest sentence our society may impose. Persons facing
that most severe sanction must have a fair opportunity to show that the Constitution
prohibits their execution. Florida’s [brightline cutoff] contravenes our Nation’s
commitment to dignity and its duty to teach human decency as the mark of a
civilized world. The States are laboratories for experimentation, but those
experiments may not deny the basic dignity the Constitution protects.

Id. at 2001. Thus, when confronted with medical indicia of a person’s culpability, or lack thereof,

courts cannot choose to ignore any scientific consensus. Id.

B. The evolving standards of decency no longer allow for the imposition of


death sentences on people in their late teens and early twenties
The United States Supreme Court prohibited the death sentence for juveniles under

eighteen in Roper, 543 U.S. at 578. That case was in itself an adjustment to the evolving standards

of decency, as it revisited its 1989 decision in Stanford v. Kentucky, 492 U.S. 361 (1989), allowing

for the imposition of death sentences on sixteen- and seventeen-year-olds. The medical community

has now overwhelmingly determined that adolescents in their late teens and early twenties are

more comparable to their younger peers than they are to adults in their late-twenties or thirties with

fully developed brains. For the same reasons Roper extended the categorical bar to all adolescents

under eighteen, it is now time for the law to meet science and for Roper to extend to those in their

early twenties.

48
1. The Eighth Amendment already treats juveniles under eighteen as a
separate category from adults
In Roper, the Court explained, “The differences between juvenile and adult offenders are

too marked and well understood to risk allowing a youthful person to receive the death penalty

despite insufficient culpability.” Roper, 543 U.S. at 572-73.

Relying on scientific studies, the Court observed: “Three general differences between

juveniles under 18 and adults demonstrate that juvenile offenders cannot with reliability be

classified among the worst offenders.” Id. at 569. First, “[a] lack of maturity and an

underdeveloped sense of responsibility are found in youth more often than in adults and are more

understandable among the young. These qualities often result in impetuous and ill-considered

actions and decisions.” Id. (citations omitted). The Court next observed:

[J]uveniles are more vulnerable or susceptible to negative influences and outside


pressures, including peer pressure. Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)
(“[Y]outh is more than a chronological fact. It is a time and condition of life when
a person may be most susceptible to influence and to psychological damage.”). This
is explained in part by the prevailing circumstance that juveniles have less control,
or less experience with control, over their own environment.

Id. Finally, the Court explained, “The third broad difference is that the character of a juvenile is

not as well formed as that of an adult. The personality traits of juveniles are more transitory, less

fixed.” Id. at 570. “These differences render suspect any conclusion that a juvenile falls among the

worst offenders.” Id.

The Court applied this same reasoning ten years later when it held unconstitutional the

imposition of mandatory life without parole sentences on individuals who were under eighteen at

the time of the offense. Miller v. Alabama, 567 U.S. 460 (2012). In explaining its reasoning, the

Court stated:

Our decisions rested not only on common sense—on what any parent knows— but
on science and social science as well. In Roper, we cited studies showing that only
a relatively small proportion of adolescents who engage in illegal activity develop
49
entrenched patterns of problem behavior. And in Graham, we noted that
developments in psychology and brain science continue to show fundamental
differences between juvenile and adult minds—for example, in parts of the brain
involved in behavior control. We reasoned that those findings—of transient
rashness, proclivity for risk, and inability to assess consequences—both lessened a
child’s moral culpability and enhanced the prospect that, as the years go by and
neurological development occurs, his deficiencies will be reformed.

Id. at 471-72 (citations omitted) (internal quotation marks omitted).

2. There is now a consensus in the medical community that the brain


continues developing through the mid-twenties, meaning that
adolescents in their late teens and early twenties are no more culpable
for their crimes than those under eighteen

Since the Court’s decision in Roper, scientific and social-science research has

demonstrated that, like sixteen- and seventeen-year-olds, people in their late teens and early

twenties do not have fully developed brains, are immature, and are vulnerable to peer pressure and

risk-taking behavior. “The age of 18 as a ‘bright line’ is not in accord with the current findings of

research in developmental science. This research reveals that human brain maturation is ordinarily

not complete until the mid-20’s . . . . This [is a] new understanding . . . .” Garbarino Report at 2.

Today it is established in the medical and scientific literature that brain


development does not reach “full maturity” until approximately the period of mid-
twenties. Synaptic pruning, the process by which brain synapses are selectively
“pruned” or eliminated continues until this time, allowing for more efficient later
brain functioning. The myelination process – the development of the substance
which provides insulation for the nerve fibers – continues as well. This allows a
mature individual to effectively transmit signals, promoting healthy brain
functioning and allowing more complex functions. This process continues until
well-into the individual’s twenties. Also continuing until approximately mid-
twenties is the increasing connectivity between regions of the brain. As these
connections are strengthened, the brain becomes better able to transmit information
between regions and becomes better at planning, dealing with emotions, and
problem-solving.

Sultan Report at 21.

In Roper, the first category of traits cited by the Supreme Court as grounds for treating

juveniles differently than adults includes immaturity, irresponsibility, and impulsivity. Roper, 543
50
U.S. at 569. “The susceptibility of juveniles to immature and irresponsible behavior means ‘their

irresponsible conduct is not as morally reprehensible as that of an adult.’” Id. at 570 (quoting

Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)). As the reports submitted in this proceeding

relate:

The pre-frontal cortex is the area of the brain in which executive functions are
developed. This region of the brain makes it possible to assess risk, think ahead, set
goals, and plan ahead. Significant development of the pre-frontal region of the brain
continues until at least the mid-twenties. Complex planning, the ability to focus on
one thing while ignoring distractions, decision-making, impulse control, logical
thinking, risk management, organized thinking, and short-term memory are all
functions of the pre-frontal cortex.

The normal maturational process of the brain is disrupted by the introduction of


alcohol and other substances. The normal maturational process of the brain is also
disrupted by trauma.

Sultan Report at 21.

Adolescent brains are immature—an immaturity that extends into early adulthood.
This includes the frontal lobes which play a crucial role in making good decisions,
controlling impulses, focusing attention for planning, and managing emotions.
Science now understands that the process of maturation involves three components
of brain function: “gray matter”- the outer layer of the brain, “white matter
connections” - the brain cells serving as the “wiring” between neurons, and activity
in the chemicals or “neurotransmitters” that execute messages within the brain. All
three are compromised in an individual in his early 20’s.

Garbarino Report at 2 (emphasis added).

A consequence of their immature brains, adolescents seek risk. Research has shown that

“individuals in the young adult period (i.e. ages 18-21)” are at a greater risk to engage in risky

behavior than younger adolescents, which indicates “that this period of development is an

important transition.” Rudolph, M., At Risk of Being Risky: The Relationship between ‘Brain Age’

under Emotional States and Risk Preference, Dev. Cognitive Neurosci. 24:93-106 at 102 (2017).

This is because the prefrontal cortex, crucial to executive functioning—which encompasses a

51
broad array of abilities such as impulse control, risk management, and decision making—continues

to develop until “at least the mid-twenties.” Sultan Report at 21.

The second category of traits cited by the Roper Court as grounds for treating juveniles

differently than adults includes vulnerability and susceptibility. Roper, 543 U.S. at 569. “Their

own vulnerability and comparative lack of control over their immediate surroundings mean

juveniles have a greater claim than adults to be forgiven for failing to escape negative influences

in their whole environment.” Id. at 570. The vulnerabilities of twenty-one year olds are analogous

to those of seventeen year olds.

[T]he hormonal conditions of such youths contribute to impaired brain function


(relative to adults) in matters of assessing and taking risks, emotional intensity, and
dealing with peers (including social rejection). All of these considerations underlie
the current scientific recognition that extended adolescents (people in their early
20’s) are a special class. The process of brain maturation is not complete in any
person until he/she reaches their mid 20’s.

Garbarino Report at 3.

The third category of traits cited by the Roper Court as grounds for treating juveniles

differently than adults includes transitory personality and unfixed character. Roper, 543 U.S. at

570. “The reality that juveniles still struggle to define their identity means it is less supportable to

conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved

character. From a moral standpoint it would be misguided to equate the failings of a minor with

those of an adult, for a greater possibility exists that a minor’s character deficiencies will be

reformed.” Id.

This reasoning applies with equal force to those in their early twenties as it does to

seventeen year olds. The brain development integral for a person to gain the capacity to achieve a

stable identity is not complete until the mid-twenties. See generally Garbarino Report at 3-4. And

with respect to Mr. Branch:

52
Mr. Branch clearly fits the brain development pattern recognized by current
science. In his late teens and early 20’s he is described as immature, impulsive,
often not functional, unable to recognize cause and effect, emotionally labile, acting
out, lacking an appropriate understanding of legal proceedings and their
consequences, and lacking in self-control. As his history demonstrates, at the time
of the offense and trial, his functioning was still that of a child. Later in life and
currently, he is thoughtful, mature, considerate of others, and taking steps to assist
himself in the legal process.

Id. at 4.

As the United States Supreme Court explained in Hall, “The Eighth Amendment ‘is not

fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a

humane justice.’” Hall, 134 S. Ct. at 1992 (quoting Weems, 217 U.S. at 349). In Hall, the Court

stated that “it is proper to consider the psychiatric and professional studies that elaborate on the

purpose and meaning of IQ scores to determine how the scores relate to the holding of Atkins.”

Hall, 134 S. Ct. at 1993. And in Miller, the Court discussed that the decisions in Roper and Graham

“rested not only on common sense . . . but on science and social science . . . and ‘developments in

psychology and brain science.’” Miller, 567 U.S. at 471. Similarly, it is appropriate for this Court

to consider scientific and social science studies to assess the age and neurological development of

defendants in their mid-twenties, like Mr. Branch.

As the aforementioned reports detail, there is no meaningful difference between a person

in his mid-twenties and a seventeen-year-old. Both have brains that have not fully developed; both

are prone to immaturity, recklessness, and impulsivity. Both are still in the neurological

development phase; both are vulnerable, have transitory personality traits, and are searching for a

stable, authentic identity.

53
3. Other objective indicia demonstrate that society as a whole is treating
older adolescents in the same way as their younger counterparts
In addition to the emerging consensus of the medical and scientific community, state and

local governments, juries, and international governments are increasingly treating extended

adolescents in ways similar to younger juveniles.

a. A national consensus reflects that individuals in their early to


mid-twenties should not be executed
There is an emerging national consensus that older adolescents should be treated differently

than adults and more similarly to juveniles under eighteen. In assessing the existence of national

consensus on an issue, the United States Supreme Court has examined laws enacted by the various

state legislatures and the decisions of sentencing juries, appellate courts, and governors about

whether to execute defendants who belong to a particular category of individuals, such as those

under eighteen. Roper, 543 U.S. at 563-65; see also Atkins, 536 U.S. at 313-17. “Statistics about

the number of executions may inform the consideration whether capital punishment . . . is regarded

as unacceptable in our society.” Kennedy, 554 U.S. at 433.

In Roper, the Court examined national consensus with respect to the execution of juvenile

offenders. According to the Court, “30 States prohibit the juvenile death penalty, comprising 12

that have rejected the death penalty altogether and 18 that maintain it but, by express provision or

judicial interpretation, exclude juveniles from its reach.” Roper, 543 U.S. at 564. The Court also

looked to the number of executions for defendants who were sixteen or seventeen at the time of

their crimes, finding that “even in the 20 States without a formal prohibition on executing

juveniles, the practice [was] infrequent.” Id. at 564-67. Ultimately, the Court found that “the

infrequency of its use even where it remains on the books; and the consistency in the trend toward

abolition of the practice—provide sufficient evidence that today our society views juveniles, in the

words Atkins used respecting the intellectually disabled, as “categorically less culpable than the

54
average criminal.” Id.; see also Hall, 134 S.Ct. at 1997 (“Consistency of the direction of change is

also relevant.”).

Here, there is similarly a trend supporting the idea that extended adolescents should not be

subjected to the death penalty. First, extended adolescents over seventeen would not be executed

for any offense in twenty-three states, the District of Columbia, and the five United States

territories. Currently, nineteen states and the District of Columbia have abolished the death penalty

as to all crimes. Facts about the Death Penalty, Death Penalty Information Center (2018). 7

Nor is a death sentence likely to be imposed under the laws of any of the five United States

Territories. The death penalty is prohibited under the constitutions of Puerto Rico and the

Commonwealth for the Northern Mariana Islands. See P.R. Const. Art. II § 7; C.N.M.I. Const. Art.

I § 4(i). In Guam and the U.S. Virgin Islands, the death penalty is not a possible sentence. See,

e.g., 9 G.C.A. § 16.39(b); 14 V.I. C. § 923(a).

And the governors of four states have imposed moratoria on executions: Pennsylvania,

Oregon, Washington, and Colorado. In Hall, the Court characterized the moratoria states as being

on the defendant’s “side of the ledger” in the national consensus equation. Hall, 134 S. Ct. at 1997.

Put simply, in twenty-three states, the District of Columbia, and the five United States

Territories, those just past the Roper cut-off would be excluded from eligibility from the death

penalty.

Second, a court must look to the states who allow a punishment but do not actually impose

it. The Graham Court noted:

7
The States that have abolished the death penalty (along with the dates of abolition) are Alaska
(1957), Connecticut (2012), Hawaii (1957), Illinois (2011), Iowa (1965), Maine (1887), Maryland
(2013), Massachusetts (1984), Michigan (1846), Minnesota (1911), New Jersey (2007), New
Mexico (2009), New York (2007), North Dakota (1973), Rhode Island (1984), Vermont (1964),
West Virginia (1965), and Wisconsin (1853).
55
[T]he many States that allow life without parole for juvenile nonhomicide offenders
but do not impose the punishment should not be treated as if they have expressed
the view that the sentence is appropriate. The sentencing practice now under
consideration is exceedingly rare. And “it is fair to say that a national consensus
has developed against it.”

Graham, 560 U.S. at 67 (citations omitted). The Court’s opinion makes clear that actual practice—

even among States that appear to authorize a particular punishment—must be considered in

determining national consensus.

Here, among states that theoretically authorize the death penalty for extended adolescents

over seventeen, seven reveal a trend against using eighteen as the cut-off. They have not executed

any offender under the age of twenty-one years in the last fifteen years. Even if those seven states

have offenders under twenty-one on their death rows, they have not imposed any new death

sentences on offenders in that age group in the last 20 years. This means that 30 States, plus the

District of Columbia and the five U.S. Territories, have decided to go beyond age eighteen in

banning outright or imposing death sentences for adolescents older than seventeen. 8

Similarly, states are expanding past the Roper cutoff in decreasing the number of

executions for those who were younger at the time of their crimes. Even in the remaining states

with the death penalty as an authorized punishment for offenders under 21 years, executions occur

in a minority of the states. In the last ten years, for example, only 12 states have actually executed

offenders who were 21 or younger at the time of their offenses: Texas, Virginia, Oklahoma,

Florida, Delaware, Mississippi, Alabama, Ohio, Georgia, South Carolina, Indiana, and South

8
The most recent example of a state departing from Roper’s age eighteen cutoff is Kentucky,
where a circuit court judge has ruled the death penalty unconstitutional for those under twenty-one
in two cases. See Vandiver, B., Trial Delayed, Death Penalty under Review, University of
Kentucky Kentucky Kernel (Oct. 20, 2017), http://www.kykernel.com/news/trial-delayed-death-
penalty-under-review/article. Mr. Branch asserts that while this shows that states are willing to go
beyond eighteen, this does not go far enough to protect all extended adolescents who have similar
cognitive deficiencies.
56
Dakota. Since 2011, that number has dropped to nine states. Indeed, of the 29 states that have had

executions since 2000, 14 states did not execute anyone under 21 years, and four of those states

have since repealed the death penalty or imposed a moratorium on executions. Of the remaining

states, death sentences are infrequently imposed on defendants under 21 or younger, and actual

executions of such individuals are even rarer.

b. State and federal laws reflect the consensus that people in


extended adolescence are categorically less mature and less
responsible than older people whose brains have reached full
maturity
The United States Supreme Court has considered state statutes imposing minimum age

requirements to buttress its conclusion that the death penalty was a prohibited punishment for

juvenile offenders: “In recognition of the comparative immaturity and irresponsibility of juveniles,

almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying

without parental consent.” Roper, 543 U.S. at 569.

The same is true for extended adolescents. In the capital sentencing context, while age is

not yet a categorical ban, it is a mitigating factor in almost all death penalty states. Since capital

punishment is prohibited for those under eighteen, the age mitigating factor clearly goes to those

who are in extended adolescence. 9

9
Twenty-three of the death penalty states that provide specific mitigating factors in their capital
sentencing statutes, including Florida, include age of the offender at the time of the crime. See
Alabama, Ala. Code § 13A-5-51(7); Arizona, Ariz. Rev. Stat. § 13751(5); Arkansas, Ark. Code.
Ann. § 5-4-605(4); California, Cal. Penal Code § 190.3 (i); Colorado, Colo. Rev. Stat. Ann. § 18-
1.3.1201(a); Florida, Fla. Stat. Ann. § 921.141 (g); Kansas, Kan. Stat. Ann. § 21-6625(7);
Kentucky, Ky. Rev. Stat. Ann. & 532.025(8); Louisiana, La. C.Cr. P. art. 905.5(f); Mississippi,
Miss. Code Ann. § 99-19-101(g); Missouri, Mo. Ann. Stat. § 565.032(7); Nebraska, Neb. Rev.
Stat. Ann. § 29-2523(d); Nevada, Nev. Rev. Stat. Ann. §200.035(6); New Hampshire, N.H. Rev.
Stat. Ann. § 630:5(d); North Carolina, N.C. Gen. Stat. Ann. § 15A-2000(7); Ohio, Ohio Rev. Code
Ann. §(4); Pennsylvania, 42 Pa. Stat. § 9711(4); South Carolina, S.C. Code Ann. § 16-3-20(7);
Tennessee, Tenn Code Ann. § 39-13-204(7); Utah, Utah Code Ann. § 76-3-207(e); Virginia, Va.
Code Ann. § 19.2-264.4(v); Washington, Wash. Rev. Code Ann. § 10.95.070(7); Wyoming, Wyo.
Stat. Ann. § 6-2-102(vii).
57
In determining intellectual disability, one of the prongs is onset during the developmental

period. While this is commonly thought of to be age eighteen, three death penalty state have

interpreted ‘onset in the developmental period’ as onset prior to age twenty-two: Indiana, Utah,

and Maryland. Ind. Code § 35-36-9-2 (2017); Utah Code § 77-15a-102; Md. Code, Crim Law §

2-202 (2010).

The “onset during the developmental period” factor also arises in civil commitment cases.

There, some non-death penalty states have civil commitment statutes which interpret “onset in the

developmental period” as onset prior to age twenty-two: Minnesota, New Mexico, and Rhode

Island. Minn. Stat. § 253B.02; N.M. Stat § 28-16A-6; N.M. Stat § 43-1-3; R.I. Gen. Laws § 40.1-

1-8.1. In Wisconsin’s statutes, “intellectual disability” is not individually defined but is

encompassed within the definition of “developmental disability.” Wis. Stat. § 51.01(5)(a).

“Developmental disability” is then defined, in part, as “manifested before the person has attained

the age of 22.” Wis. Stat. § 51.62(1).

In the criminal justice system more generally, there are many examples of courts and

legislatures recognizing that people in their early to mid-20s are not full-fledged adults. For

example, in Nebraska, the Douglas County Young Adult Court “is a judicially supervised program

that provides a sentencing alternative for youthful offenders up to age 25.” 10 There is also a young

adult court in Idaho, recognizing that the “18-24 [year-old] brain is unique,” due to the

Two more states include this factor for defendants who are under the age of eighteen, but as that
is now a complete bar to a death sentence, presumably they consider evidence of youth for those
over the age of eighteen as well. See Indiana, Ind. Code Ann. § 35-50-2-9(6); Montana, Mont.
Code Ann. § 46-18-304(g).
10
https://www.dc4dc.com/young-adult-court
58
“[p]refrontal cortex” being “not fully developed,” and that offenders in this age range are at high

risk. 11

In California, a young adult court serves people ages 18 to 25. These courts are based on

the growing body of research that “the prefrontal cortex of the brain—responsible for our cognitive

processing and impulse control—does not fully develop until the early to mid-20s.” 12 The young

adult courts acknowledge “are going through this critical developmental phase, many find

themselves facing adulthood without supportive family, housing, education, employment and

other critical protective factors that can help them navigate this tumultuous period.” Id. It

accommodates these differences because “traditional justice system is not designed to address

cases involving these individuals, who are qualitatively different in development, skills, and needs

from both children and older adults.” Id.

In New York, a young adult court serves people ages 16 to 24 in response to “the latest

findings on adolescent brain developments.” 13

States are increasingly opening young adult correctional facilities to focus more on

rehabilitation and building life resources. They have done this in Connecticut (for 18 to 25 year

olds), Maine (for 18 to 26 year olds), and New York (a unit at Rikers Island specifically houses

18 to 21 year olds).

Other, non-legal examples of where society treats extended adolescents differently than

adults include rental cars, where rental car companies charge young driver fees to those between

11
https://www.nadcp.org/sites/default/files/2014/CG-12.pdf
12
http://www.sfsuperiorcourt.org/divisions/collaborative/yac
13
https://www.courtinnovation.org/areas-of-focus/youth-programs
59
eighteen and twenty-four, and healthcare, where young adults are allowed to stay on their parents’

health insurance until age twenty-six.

c. International opinion on the death penalty and the treatment of


criminal offenders 21 years of age or younger further supports
the premise that the death penalty should be categorically
prohibited
The Roper Court considered the laws of the international community as “instructive for its

interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments.’” Roper,

543 U.S. at 575-76. See also id. at 604 (O’Connor, J., dissenting) (“Over the course of nearly half

a century, the Court has consistently referred to foreign and international law as relevant to its

assessment of evolving standards of decency.”). The death penalty is not implemented at all in a

majority of other countries, let alone against extended adolescents. Although the number of death

sentences handed down globally increased in 2016, the trend towards abolition of the death penalty

continues, with 104 countries having abolished the punishment by the end of 2016 as compared to

64 countries which had done so as of 1997. Death Sentences and Executions 2016, Amnesty

International, at 24 (2017).

Imposition of the death penalty has declined internationally. According to Amnesty

International, 37 percent fewer executions occurred worldwide in 2016 than in 2015. Death

Sentences and Executions 2016, Amnesty International, at 4 (2017). Saudi Arabia, Iran, Iraq and

Pakistan accounted for 87 percent of the global number of executions. Id. Two countries, Benin

and Nauru, abolished the death penalty for all crimes, and one country, Guinea, abolished it for

“ordinary crimes.” Death Sentences and Executions 2016, Amnesty International, at 9 (2017).

Other countries and the United Nations have also recognize that people are not fully adults

the moment they turn eighteen years old and that juvenile punishments, rather than adult

punishments, are appropriate to those in their extended adolescent years. For example, members

60
of the international community also recognized the need to treat youthful offenders as juveniles

rather than as adults in the criminal context. The United Nations Standard Minimum Rules for the

Administration of Juvenile Justice (The Beijing Rules) require that “(e)fforts shall also be made to

extend the principles embodied in the Rules to young adult offenders,” and extend the protection

afforded by the Rules to cover proceedings dealing with extended adolescents. 14 The United

Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing

Rules”), Rule 3.3 & Commentary to Rule 3.3, adopted by General Assembly resolution 40/33 of

29 November 1985. 15

European countries’ treatment of people in their early 20s in the criminal context is

informative on whether the death penalty should be formally abolished for that age group in the

United States. In Germany, all young adults ages 18 to 21 fall within the jurisdiction of the juvenile

courts, but those courts have the option of sentencing according to the juvenile law or the adult

law. The German Supreme Federal court has further developed the law by ruling that a young adult

has the maturity of a juvenile if his or her personality is still developing; this logic has been used

to argue that juvenile justice options should be available for young adults up to the age of 24 years.

In 2014 the Netherlands enacted a law which extends the applicability of juvenile sanctions to

young adults aged 18 to 23 years. 16

14
“A juvenile is a child or young person who, under the respective legal systems, may be dealt
with for an offence in a manner which is different from an adult(.)” Beijing Rules, Rule 2.2(a).

15
Available at http://www.un.org/documents/ ga/res/40/a40r033.htm.

16
In other European countries, youth between the ages of 18 to 21 are not subject to the jurisdiction
of adult courts. In Austria, for example, youths who commit offenses at 21 are subject to special
youth courts. Various provisions of the juvenile code, rather than the adult code, apply to these
offenders. Croatia, too, provides that persons ages 18 to 21 will be treated by specialized juvenile
courts and fall within the juvenile courts act. There are also reduced penalties for offenders under
21 years. European countries also distinguish extended adolescents at the trial court stage. In
61
4. The Supreme Court’s own jurisprudence calls for the prohibition of
imposing death sentences on extended adolescents
As it can be established that the objective indicia treats older adolescents like their younger

peers, this Court must move on to the second step: Supreme Court jurisprudence.

As with adolescents under eighteen, death sentences imposed upon extended adolescents

have little or no penological purpose. They do not meet any of the three principal rationales of

punishment: “rehabilitation, deterrence, and retribution.” Kennedy, 554 U.S. at 420.

“Rehabilitation, it is evident, is not an applicable rationale for the death penalty.” Hall, 134 S. Ct.

at 1992-93 (citation omitted). Thus, “capital punishment is excessive when it is grossly out of

proportion to the crime or it does not fulfill the two distinct social purposes served by the death

penalty: retribution and deterrence of capital crimes.” Kennedy, 554 U.S. at 441; Gregg v. Georgia,

428 U.S. 153 (1976) (noting that the death penalty should serve these “two principal social

purposes”).

“Retribution is not proportional if the law’s most severe penalty is imposed on one whose

culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and

immaturity.” Roper, 543 U.S. at 571. Indeed, “[i]f the culpability of the average murderer is

insufficient to justify the most extreme sanction available to the State (that is, if the State cannot

execute all murderers), the lesser culpability of the mentally retarded offender surely does not

merit that form of retribution.” Atkins, 536 U.S. at 319.

Finland and Sweden there are no specialized juvenile courts; rather, these countries approach
punishment of all offenders from a rehabilitative standpoint. Still, offenders under 21 years who
are sentenced to prison get released after serving one-third of their time while adults are released
after serving one-half or two-thirds of their sentences. In Sweden, imprisonment for youth 21 or
younger is a last resort, and such offenders can be subject to the same supervision (called “youth
service”) as juveniles. As for terms of imprisonment, the maximum term for offenders 21 years
old or younger is fourteen years.
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The reasoning of Atkins also applies here: the culpability and blameworthiness of youthful

offenders in extended adolescence are diminished to a substantial degree by their youth and

immaturity. American society recognizes the dual need to provide greater protections for this

group and to prohibit them from participating in activities where youthful impulsivity and

immaturity could put them or others at risk. The law does not grant these youth the same rights

and entitlements of adults; and for purposes of punishment, they should not be treated the same as

adults. Just as with juveniles under 18 years of age, research suggests that this group can mature

and “age out” of the recklessness and impulsiveness that can characterize this group of individuals.

The fact that this group can mature—can attain a better understanding of their own humanity—

necessarily means that they cannot be the “worst of the worst” so as to justify the ultimate sanction.

As for the rationale of deterrence, “it is unclear whether the death penalty has a significant

or even measurable deterrent effect on juveniles.” Roper, 543 U.S. at 571. “The same

characteristics that render juveniles less culpable than adults suggest as well that juveniles will be

less susceptible to deterrence.” Id. The Roper Court explained that “[t]he likelihood that the

teenage offender has made the kind of cost-benefit analysis that attaches any weight to the

possibility of execution is so remote as to be virtually nonexistent.” Id. Indeed, “to the extent the

juvenile death penalty might have residual deterrent effect, it is worth noting that the punishment

of life imprisonment without the possibility of parole is itself a severe sanction, in particular for a

young person.” Id.; see also Atkins, 536 U.S. at 319-20 (noting that the impairments of

intellectually disabled offenders make it less defensible to impose the death penalty as retribution

for past crimes and less likely that the death penalty will have a real deterrent effect particularly in

that population).

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The reasoning about the lack of deterrence applies to individuals in extended adolescence,

too. Deterrence as a rationale for punishment necessarily requires a group to reflect upon the

consequences of its actions. People in their early to mid-20s suffer from the same impulsivity as

younger teenagers. They act rashly, without reflection and full consideration of the consequences

of their actions. They do not grow out of this behavior until their brains have fully formed. Like

seventeen year olds, adolescents in their early 20s also lack the self-regulation and executive

functioning to appreciate the death penalty as a deterrent.

Capital punishment is only lawful if the offender’s “consciousness [is] materially more

‘depraved’ than that of any person guilty of murder.” Godfrey v. Georgia, 446 U.S. 420, 433

(1980). The characteristics of adolescents—for example, impulsivity and lack of full brain

development—so affect their individual responsibility and moral guilt that it categorically

precludes such a finding. Thus, their execution is categorically unconstitutional.

C. Mr. Branch’s case is especially demonstrative of why Roper should be


extended, given the effects of his traumatic childhood on his cognitive
development and his immature functioning at the time of the offense
In addition to Mr. Branch being only twenty-one at the time of his crime, so that he already

lacked a fully matured adult brain in all the ways discussed above, Mr. Branch’s traumatic

childhood and history of adolescent substance abuse would have delayed his brain development

even more. The unique characteristics and experiences of an individual impacts the development

of his brain. “Youth who have experienced significant trauma and deprivation are especially prone

to developmental delays on these same dimensions of executive function and affective regulation,

with their situation being appropriately categorized as ‘adolescence squared.’” Garbarino Report

at 3. “If trauma occurs repeatedly and for a prolonged time, as it did for Eric Branch, it impedes

brain development even further.” Report of Dr. Sultan, at 21.

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For Mr. Branch, these impactful experiences include the abuse and neglect he suffered, the

instability of his home life, and alcohol use. As Faye Sultan, Ph.D., found, these adverse childhood

experiences had a devastating effect on the development of Mr. Branch’s brain.

It is the professional opinion of this examiner, stated to a reasonable degree of


certainty, that the cognitive and emotional development of Eric Branch, was
significantly impaired and delayed by the above-described factors, and most
particularly his yet undeveloped brain at the time of the offense, when he was
twenty-one years old.

Report of Dr. Sultan, at 21. “In the case of Eric Branch, his social history indicates he is just such

an individual - growing up with much adversity, including psychological adversity such as

experiences of parental rejection, and physical maltreatment (including physical traumas which

may have resulted in insults to his brain).” Id.

Dr. Sultan described how the trauma Mr. Branch suffered impacted his brain development:

Eric Branch was exposed to chronic trauma within his home and within his
community. Traumas, and the resulting fear produced by such situations, are now
understood to undermine the development of a child’s brain. The brain adjusts to
patterned-repetitive experiences that are understood through the senses. Trauma
impacts brain areas like the amygdala (involved in emotion management) and the
hippocampus (involved in memory and memory consolidation).

Report of Dr. Sultan, at 21.

Mr. Branch’s neurological development was also impacted by the consumption of alcohol.

The relationship between alcohol use and a developing brain is complex. Alcohol use is also related

to a young person’s brain not being fully formed, and concurrently alcohol use impedes

neurological development. Alcohol consumption is both a cause and an effect of the delays in brain

development.

According to Dr. Sultan, Mr. Branch’s brain development was impaired and delayed due

to self-medication with alcohol.

Mr. Branch, like other adults with chronic trauma, demonstrated difficulty with the

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formation and maintenance of intimate relationships. He developed inappropriate
ways to deal with the people in his life. He had trouble expressing his emotional
needs, and he was distrustful of others to the extreme. In order to cope with his
unmet emotional needs, Eric Branch turned to alcohol binging and substance abuse.

***

Medical research has demonstrated that adolescent substance abusers show


abnormalities on multiple measures of brain functioning which is linked to changes
in cognitive ability, decision-making, and the regulation of emotions.
Abnormalities have been seen in brain structure volume, white matter quality, and
activation to cognitive tasks.

Report of Dr. Sultan, at 20-21. “Deficits in executive functioning, specifically in the areas of

abstract reasoning ability and problem-solving ability have also been linked directly to adolescent

substance abuse.” Id. Because of this, “[t]he normal maturational process of the brain is disrupted

by the introduction of alcohol and other substances.” Report of Dr. Sultan, at 21.

According to Dr. Garbarino, “[w]hile such consumption by a traumatized person like Mr.

Branch has a self-medicative component, its significance . . . is that such a history additionally

impairs brain development for adolescents and individuals in their early 20’s.” Garbarino Report

at 5. “[G]iven the trauma and social deprivation that he experienced growing up and his immature

development, traumatized, impulsive, and socially inexperienced. But more than that, as a twenty

one-year-old, he was still years away from the developmental time when brains mature.” Id.

Based on medical and scientific developments conclusively showing that a person’s brain

is not fully developed until late in the third decade of life, the national consensus against the

execution of people in late adolescence—as shown through laws and practices—and legislation at

the local, state, and international level that protects people in their early twenties (and treats them

akin to juveniles), it is unconstitutional to execute extended adolescents. There is no meaningful

difference between a seventeen year old and someone like Mr. Branch, due to the biological

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immaturity of their brains and their compromised functioning. No penological purpose is served

by the execution of either.

The execution of Mr. Branch, whose “cognitive and emotional development . . . was

significantly impaired and delayed,” Report of Dr. Sultan, at 21, would be unconstitutional. His

death sentence, excessive and unconstitutional, must be vacated.

Claim 2: The needless suffering and uncertainty Mr. Branch has experienced during
his time on death row is in violation of the Eighth Amendment prohibition
against cruel and unusual punishment
I. There is no procedural impediment to this claim, which did not become ripe until
Defendant’s death warrant was signed, and the Court should therefore decide the
claim on the merits
There is no procedural impediment to Defendant’s Eighth Amendment claim that it would

be cruel and unusual to execute him after his particularly anguishing 24 years of confinement on

death row, during which his desperate attempts to obtain counsel to assist with his case went

repeatedly unanswered. This Court should decide this claim on the merits, and grant relief for the

reasons discussed below.

Like a claim of incompetency to be executed, see Panetti v. Quarterman, 551 U.S. 930

(2007), or a broad claim that it would be cruel and usual to execute a prisoner who had spent an

inordinate number of years on death row, see Johnson v. Bredesen, 558 U.S. 1067 (2009) (Stevens,

J., statement respecting the denial of certiorari), Defendant’s Eighth Amendment claim did not

become ripe until his death warrant was signed and an execution became imminent. Because

Defendant’s claim is not only that his arduous years spent looking for counsel on death row

themselves give rise to an Eighth Amendment violation—but rather, that his execution, in light of

and on the heels of those years, would violate the Eighth Amendment’s prohibition on cruel and

unusual punishment—the claim “is measured at the time of execution, not years before then.”

Tompkins v. Secretary, 557 F.3d 1257, 1260 (11th Cir. 2009).

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Where a defendant’s claim does not become ripe until a death warrant is signed, the claim

should not be denied during under-warrant litigation on the ground that it is barred under the

procedural requirements for successive post-conviction applications. See Stewart v. Martinez-

Villareal, 523 U.S. 637, 644-45 (1998). Instead, the newly-ripe claim should receive merits

considerations, as it is the defendant’s first and only opportunity for such review. As the Florida

Supreme Court has observed, a claim that does not ripen until a death warrant is signed cannot be

raised in an earlier post-conviction proceeding, and would be subject to immediate dismissal on

ripeness grounds. See Griffen v. State, 866 So. 2d 1 (Fla. 2003). This makes sense because such

claims “mean[] nothing unless the time for execution is drawing nigh.” Tompkins, 557 F.3d at

1260. But, once a warrant is signed, the defendant should be afforded an opportunity for review of

the claim on the merits.

Defendant could not have raised his Eighth Amendment claim in an earlier post-conviction

proceeding because it did not become ripe until the eve of this litigation. Under these

circumstances, a “literal application” of the successive motion requirements in Fla. R. Crim. P.

3.851(e)(2) would not only work a miscarriage of justice in this case but “would frustrate the

purposes” of the successive rules, and promote judicial inefficiency, by leading litigants to

inundate the state’s courts with unripe and premature claims. See Stewart v. United States, 646

F.3d 856 (11th Cir. 2011). As set forth below, Defendant has colorable arguments in support of

his constitutional claim that deserve this Court’s consideration. This Court should decide the claim

on the merits.

II. Mr. Branch has experienced needless uncertainty and suffering during his time on
death row
Eric Branch has been on death row for 24 years, and he has spent most of that time fighting

for competent legal representation. His days have been filled with uncertainty, never knowing

68
when he would finally receive a response from one of the many lawyers, law firms, and legal aid

organizations to whom he had reached. And his days have been filled with uncertainty whether the

governor would sign his death warrant, as he had done to so many of Mr. Branch’s friends over

the past 24 years. The United States Supreme Court recognized Mr. Branch’s predicament over a

hundred years ago, observing that “when a prisoner sentenced by a court to death is confined in

the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which

he can be subjected during that time is the uncertainty during the whole of it.” In re Medley, 134

U.S. 160, 172 (1890). As Justice Brennan noted, “The ‘fate of ever-increasing fear and distress’ to

which the expatriate is subjected, Trop v. Dulles, 356 U.S. 86, 102, (1958), can only exist to a great

degree for a person confined in prison awaiting death.” Furman v. Georgia, 408 U.S. 238, 289

(1972).

Although the United States Supreme Court has held that capital punishment does not

violate the Eighth Amendment, the Court also recognized that “the sanction imposed cannot be so

totally without penological justification that it results in the gratuitous infliction of suffering.”

Gregg v. Georgia, 428 U.S. 153, 183 (1976).

Rather than speculating about the “ever-increasing fear and distress,” see Trop, 356 U.S.

at 102, Mr. Branch must have felt, he has made the point himself. Years of Mr. Branch’s letters

and pleadings serve as a remarkable documentation of his inner thoughts throughout his time on

death row. For example, when the District Court for the Northern District of Florida denied his §

2254 petition, Mr. Branch speculated that he only had seven months to one year of appeals left.

He wrote, “Assuming I win nothing than [sic] it’s up to the governor. It could be a week. It could

be 10 yrs after. But he can sign my warrant at any moment after my appeal expires.” Letter

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Excerpts from Mr. Branch to Leora Nosko-Passmore; his grandmother; his aunt, Connie Branch;

and his cousin, Alex Branch (2008 to 2013) (hereinafter “Branch Letter Excerpts”).

Mr. Branch panicked even more when the Eleventh Circuit denied his appeal, causing him

to fear that he would imminently end up on the “Ready List” – a list of death row prisoners

provided to the governor indicating they have exhausted all appeals and are ready for execution.

Mr. Branch explained, “Once I am on the list, staying there 3 months is normal. Remaining there

3 yrs is extraordinary. Meaning I have up to 3 months but less than 3 yrs to make something happen

or die.” Id. Shortly thereafter, Mr. Branch grew even more fearful when the United States Supreme

Court denied his petition for writ of certiorari, again writing, “There is no hope of lasting 3 years

on the Ready List for the simple fact they will run out of people on the list long before that and

have to kill me.” Id. Sure enough, Mr. Branch received notification that he was on the governor’s

list less than a month later.

The pressure started to weigh on Mr. Branch. His letters became darker, and he wrote,

“Most days I don’t even feel like opening my eyes. I am constantly tired, sad, lonely, hungry, and

generally miserable . . . .” Id. Almost a year after Mr. Branch’s certiorari petition had been denied,

he told his cousin, “I feel like somebody has been standing behind me with a gun to my head for

a year now. It’s fucking exhausting.” Id.

Mr. Branch also described what it felt like to have the men living around him taken away

and killed one by one:

The tough part is that now everyone they are killing has been here with me for 20
years. Its [sic] kind of like coming into work and finding every month another
person you’ve worked in the office with for 20 years has been taken out back and
killed. Even when it’s not you, it’s so much stress.
Id.

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In 2013, Florida passed the Timely Justice Act. It required the governor to issue a warrant

within 30 days of clemency denial, and to schedule an execution within 180 days of the warrant.

This caused utter panic on Florida’s death row, as the prisoners wondered how quickly their

executions would be processed and if there might be mass warrants. Mr. Branch described the

fearful atmosphere, writing:

Now, every time the door opens, it falls quiet, everybody wondering if he did it . .
. signed all our warrants or is he coming after just one of us today . . . . Anybody
who survives this will be driven nuts, watching 120 people they know get killed,
wondering at each open door – am I next? It’s too much.

Exacerbating Mr. Branch’s anxiety was that most of his time on the row, he was

represented by inadequate conflicted counsel. See Part III, supra. In over sixty letters to his loved

ones, Mr. Branch lamented his lack of appropriate representation all through his state and federal

review. He reached out to local Florida and notional attorneys and organizations. See, e.g., Letter

from Mr. Branch to Michael Radelet. He filed numerous pro se pleadings, most of which were

stricken due to the representation by his conflicted counsel. Mr. Branch finally got some assistance

when he reached out to the American Bar Association’s Death Penalty Project in April of 2010.

See Letters from Mr. Branch to the ABA. However, it took the ABA more than three years to find

counsel for Mr. Branch, and by then his appeals were completely exhausted. Ms. Emily Olson-

Gault of the ABA wrote, “We recognize that if we had been able to find a law firm sooner – or if

Mr. Branch had received consistent, qualified representation from court-appointed counsel

throughout the case – his legal situation might be different.” See Letter from the ABA Death

Penalty Representation Project to Kimberly Newberry (January 25, 2018).

Ms. Olson-Gault said of Mr. Branch:

During the years we were looking for pro bono counsel, Mr. Branch stayed in
frequent contact with the Project, asking about our efforts and urging us to not give
up trying to find counsel for him. He provided me with suggestions for lawyers that

71
I might try to contact and kept me updated on legal developments in his case. . . .
He was as diligent and persistent in seeking representation and trying to preserve
his claims as any death-sentenced prisoner I have encountered in my many years of
working with the Project.
Id.
As the Supreme Court once stated about the death penalty, “one of the most horrible

feelings to which he can be subjected during that time is the uncertainty during the whole of it.”

Medley, 134 U.S. at 172. Mr. Branch’s letters put that uncertainty on full display, along with the

fear, paranoia, and tension familiar to those living under a death sentence—but exacerbated by Mr.

Branch’s lack of adequate conflict-free counsel. Executing Mr. Branch after those twenty-four

years on death row violates the Eighth Amendment’s prohibition against cruel and unusual

punishment, not solely because of the length of time he has been on death row, but because of the

psychological suffering he endured as he wrote letter after letter complaining about his attorney,

drafting pro se motions that would be ignored by the courts, and launching campaigns from death

row to find an attorney in the United States that would represent him – the whole time fearing that

“whenever the Governor wants me to die, I will.” Id.

CONCLUSION
For the foregoing reasons, Mr. Branch’s death sentence violates the Eighth Amendment. It

is unconstitutionally excessive because Mr. Branch’s age and under-developed brain at the time of

the offense prevented him from having the requisite culpability to be eligible for a death sentence.

It is unconstitutional, because Mr. Branch’s time on death row, anguishing over when he would

be killed and constantly having to seek legal representation, was cruel and unusual punishment.

WHEREFORE, this Court should:

1. Enter a stay of execution;

2. Grant an evidentiary hearing to resolve contested issues of fact;

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3. Allow amendment of this submission as may by just and proper;

4. Vacate Mr. Branch’s sentence of death and prohibit his execution.

Respectfully submitted,

/s/ Stacy Biggart /s/ Billy H. Nolas


Stacy Biggart Billy H. Nolas
Assistant Capital Collateral Chief, Capital Habeas Unit
Regional Counsel—North Office of the Federal Public Defender
1004 DeSoto Park Drive Northern District of Florida
Tallahassee, FL 32301 227 N. Bronough Street, Suite 4200
(850) 487-32301 Tallahassee, FL 32301-1300
stacy.biggart@ccrc-north.org (850) 942-8818
Florida Bar No. 89388 billy_nolas@fd.org
Florida Bar No. 806821

Kathleen Pafford Kimberly Sharkey


Assistant Capital Collateral Attorney, Capital Habeas Unit
Regional Counsel—North Office of the Federal Public Defender
1004 DeSoto Park Drive Northern District of Florida
Tallahassee, FL 32301 227 N. Bronough Street, Suite 4200
(850) 487-32301 Tallahassee, FL 32301-1300
kathleen.pafford@ccrc-north.org (850) 942-8818
Florida Bar No. 99527 kimberly_sharkey@fd.org
Florida Bar No. 505978

Counsel for Eric Branch

73
CERTIFICATION OF COUNSEL

Pursuant to Fla. R. Crim. P. 3.851(e)(1)(F), undersigned counsel hereby certifies that they

have discussed the contents of this motion fully with Defendant Eric Branch and have complied

with Rule 4-1.4 of the Rules of Professional Conduct, and that this motion is filed in good faith.

/s/ Billy H. Nolas


Billy H. Nolas
/s/ Stacy Biggart
Stacy Biggart

CERTIFICATE OF SERVICE
I certify that on January 29, 2018, the foregoing was served via the e-portal to Assistant

Attorney General Charmaine Millsaps at cappapp@myfloridalegal.com and Assistant State

Attorney John Molchan at jmolchan@sa01.org.

/s/ Billy H. Nolas


Billy H. Nolas

74